From extraordinary to ordinary: a critical analysis of the Unlawful Activities (Prevention) Act, 1967 and Section 113 of the Bharatiya Nyaya Sanhita, 2023

Abstract India’s criminal justice framework, through both general and special legislations, is a rudimentary rendition of its colonial genesis. Elements of obsolete colonialism, in terms of law making and governance methodologies, are argued to have plagued contemporary India’s counter-terrorism framework. In light of this, this article aims to critically deconstruct the presently operational counter-terrorism statute of the Unlawful Activities (Prevention) Act, 1967 (UAPA), and the replicated offence of ‘terrorist act’ into the general law under section 113 of Bharatiya Nyaya Sanhita, 2023 (BNS). The authors engage in a provision-specific analysis of UAPA and section 113. This is revelatory of its pragmatic implications in terms of politicized application and their indubitable deviation from established principles of criminal jurisprudence and India’s constitutional configuration. The concomitant creation of a mutilated jurisprudence is argued to be jurispathic on three grounds: legislative dependence on colonial antiquities, executive normalization through political aggrandization, and judicial complicity through silent acquiescence. The configuration of crime, criminal, and criminality is argued to continuously result in human rights violations of the accused. The orientation of India’s attempts at countering terrorism, through extraordinary and ordinary legislative systems, has therefore been rendered a tool of oppression through the hyper-criminalization of those victimized by its process.