Constitutional Validity of Amendments to UAPA Challenged in SC

New Delhi: Barely a month after the amendments to the Unlawful Activities (Prevention) Act (UAPA) were passed by both houses of Parliament and got President’s assent, the constitutional validity of the amended legislation has been challenged in the Supreme Court. The petition has been filed on the ground that the amendment are infringements upon the fundamental rights of citizens, their reputation and dignity guaranteed under Article 21 of the Constitution.

On August 2, the Parliament passed a controversial bill to amend the anti-terror law and it received President’s ascent on August 9. The Unlawful Activities (Prevention) Amendment Act, 2019 allows the Central government to designate individuals as terrorists, seize their properties and put a travel ban on them.

“We have filed a public interest litigation (PIL), challenging the Constitutional validity of Section 35 and Section 36 of the Unlawful Activities (Prevention) Act, 1967 as amended by the UAPA Amendment Act 2019. It infringes the fundamental rights guaranteed under Article 14, 19(1) (a), 21 of the Constitution of India,” lawyer Fauzia Shakil, the petitioner’s Advocate on Record in the apex court, told NewsClick.

Also read: ‘Unlawful’ Amendment to UAPA 2019: A Brief Analysis

The petition has been filed on behalf of Association for Protection of Civil Rights (APCR) – a non-profit and non-governmental civil rights group based in the national capital. APCR has in the past provided legal aid to the victims of illegal detention, custodial death, fake encounter, communal riots and other human rights violations.

Talking about the Amendment, she said, “Notifying an individual as a terrorist without giving him an opportunity of being heard violates the individual’s right to reputation and dignity. Condemning a person unheard on a mere belief of the government is unreasonable, unjust, unfair, excessive, disproportionate and violates due process. A person who is designated a terrorist, even if he is de-notified, subsequently faces a lifelong stigma and this tarnishes his reputation for life.

Additionally, the petition says, Section 35 does not mention when a person can be designated as terrorist. “A person is never informed of the grounds of his notification, so the remedy of challenging his notification under Section 36, as provided for in the Act, is rendered practically otiose,” said the plea.

A bare perusal of the Amendment – says the counsel for the petitioner – reveals that there is no criminal consequence that follows a person’s designation as a terrorist. No new offence has been created or new punishment provided, she said.

“The Amendment is grossly disproportionate and has no rationale nexus between the objects and means adopted to meet them. It is unclear as to what legitimate aim does the State seek to achieve by declaring a person as a terrorist without even providing an efficacious remedy to challenge his notification,” the petition contended.

Also read: UAPA Amendment: Gateway to Misuse Anti-Terror Law, Say Critics

As per the Amendment, the accused can challenge his notification before the same Central government that has notified him as a terrorist under Section 36. Thereafter, upon rejection, an application is made to a Review Committee. No provision for oral hearing has been provided at any stage.

“There is no requirement of furnishing to the person, designated as a terrorist, the grounds of his designation, which renders the entire process of challenging the notification nugatory. There is no judicial determination or adjudication,” said Shakil.

Adding that the Amendment also violates the fundamental rights of individuals, she said, “The Amendment violates Article 14 as much as it is manifestly arbitrary and gives unbridled powers to the Centre. It is a blanket power with no specified guidelines. Though terrorism has not been defined under the Act, Section 15 of the Act defines ‘terrorist act’ and includes an act that is ‘likely to threaten’ or ‘likely to strike terror in people’, gives unbridled power to the government to brand any ordinary citizen, including activists, without these acts being actually committed. There is no requirement of giving reasons. Further, a bare reading of Section 35(3) of the Act, which has also been amended, will make it evident that the provision suffers from the vice of vagueness. There is no mention of when an individual is deemed to have ‘committed’, ‘prepares’, ‘promotes’ or ‘otherwise involved in terrorism’.”

Under Section 35 of the parent Act, the Centre was already empowered to declare by notification an organisation which it believes is involved in terrorism. Membership of such terrorist organisation is an offence under Section 38. Giving support to such terrorist organisation is an offence under Section 39. Section 40 makes raising funds for a terrorist organisation an offence.

“As the parent Act had sufficient provisions to deal with individuals associated with terrorist organisations, the present amendment appears to be unnecessary and unwarranted and targets individuals who are not members of any terrorist organisation and who the Centre believes is involved in terrorism and can be subject to wanton abuse,” said the petition.

The plea has sought a direction from the apex court, declaring Section 35 and 36 of the Unlawful Activities (Prevention) Amendment Act as “unconstitutional” and “void” as those violate the fundamental rights of individuals.

Also watch: Rowlatt Act to UAPA: Change and Continuity