The UAPA Amendment 2019 has long been a controversial piece of legislation in India, designed to combat terrorism and unlawful activities threatening national security. It has sparked significant debate due to the expanded powers it grants the government, especially regarding the designation of individuals as terrorists. This change, particularly under Section 35, has raised questions about the impact on individual rights, including freedom of speech, due process, and reputation. The Supreme Court of India has recently clarified that High Courts are allowed to continue hearing petitions challenging these amendments.
NEW DELHI: The Unlawful Activities (Prevention) Act (UAPA) has long been a controversial piece of legislation in India, designed to combat terrorism and unlawful activities threatening national security. However, the 2019 amendment to the Act has sparked significant debate due to the expanded powers it grants the government, especially regarding the designation of individuals as terrorists. This change, particularly under Section 35, has raised questions about the impact on individual rights, including freedom of speech, due process, and reputation. The Supreme Court of India has recently clarified that High Courts are allowed to continue hearing petitions challenging these amendments.
Key Issues
- Does the Amendment limit the right to dissent, violating the right to freedom of speech under Article 19(1)(a)?
- Does allowing the government to label someone as a terrorist without trial or judicial review violate criminal law principles?
- Is it against the rule of law, natural justice, and the right to reputation for the executive to unilaterally declare someone a terrorist under Section 35 of the Act and add them to Schedule IV?
- Is the 2019 amendment to the Unlawful Activities (Prevention) Act (UAPA) arbitrary and against Articles 14 and 21 of the Constitution?
Case Description
The Unlawful Activities (Prevention) Act, 1967 (UAPA) is a law created to ban unlawful and terrorist activities that threaten India’s integrity and sovereignty. It also gives the central government extensive power to declare organizations as terrorist groups and impose penalties on individuals involved in these activities.
In 2019, significant changes were made to the law, known as the 2019 Amendment. The most important change was the modification of Section 35, which gave the government the power to declare individuals as terrorists and add them to Schedule IV of the UAPA. Before this amendment, only organizations could be labeled as terrorists, and individuals were not included under this provision.
Critics of the Amendment argue that it gives the government too much unchecked power, violating an individual’s right to due process, the right to dissent, and their right to reputation. Two separate petitions challenging the constitutional validity of the Amendment were filed in the Supreme Court. On 7th September 2019, the Court issued a notice to the Union Government in response to these petitions.
Historical Background
The UAPA has been in force since 1967, but it wasn’t until 2004 that a dedicated section for punishing terrorist activities was added through the UAPA Amendment Act, 2004 (Chapter IV). The law was later amended in 2008 and 2013 as well.
Before the UAPA was revised, laws like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the Prevention of Terrorism Act, 2002 (POTA) were used to address terrorism. Both these laws were challenged in court multiple times for being unconstitutional.
For example, in the case of Kartar Singh v. State of Punjab, the validity of TADA was challenged on the grounds that it dealt with issues related to “public order,” which the states had control over. However, the court ruled that the law was valid because it addressed more serious threats that fell under the Union’s national defense responsibilities.
A similar case was brought against POTA in PUCL v. Union of India, and the court also upheld its validity for similar reasons. However, the UAPA has never been questioned on the grounds of legislative competence.
The court has frequently examined specific provisions of laws like TADA and POTA. In Sri Indra Das v. State of Assam, the court limited the power of Section 10 of the UAPA and Section 3(5) of TADA, both of which made membership in banned organizations a criminal act. The court ruled that interpreting these provisions literally would violate Articles 19 and 21 of the Constitution.
This decision was consistent with an earlier ruling in Arup Bhuyan’s case, where the court stated that
“mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”
Current scenario
The Supreme Court of India has clarified that High Courts are allowed to continue hearing petitions challenging amendments made to the Unlawful Activities (Prevention) Act (UAPA). This decision was made by a Bench consisting of Chief Justice of India (CJI) Sanjiv Khanna, Justice PV Sanjay Kumar, and Justice KV Viswanathan.
The Bench noted that the Supreme Court should not be the first to examine such matters unless there are exceptional circumstances. CJI Khanna remarked,
“A lot of problems arise. Sometimes issues are left by your side and sometimes by the other side; then we have to refer to a larger bench and it becomes an issue. We will have it before the High Court.”
Following this observation, the Supreme Court issued an order allowing the High Courts to proceed with cases related to the UAPA amendments that are currently pending before them.
Several petitions challenging the UAPA provisions have been pending before the Supreme Court since 2019. Among the petitioners are Sajal Awasthi, an individual, and the Association for Protection of Civil Rights (APCR), an NGO.
Singh, representing the petitioners, said,
“In our case, we are all retired distinguished bureaucrats. We approached the Supreme Court, and it would be burdensome for us to seek representation in multiple high courts.”
The Chief Justice agreed and directed that these petitions be listed before the Delhi High Court.
The petitioners argue that the designation of a person as a terrorist, based solely on the government’s belief, is unreasonable and violates due process. They claim that even if a person is later removed from the terrorist list, the label causes permanent damage to their reputation.
The petitions specifically challenge Sections 35 and 36 of the UAPA, which were amended in 2019. These provisions give the government the power to label any individual as a “terrorist.” The APCR argues that this labeling leads to lifelong stigma and violates fundamental rights under Articles 14, 19, and 21 of the Indian Constitution.
Previously, the Supreme Court allowed petitioners the option to withdraw their cases and pursue their challenges in the High Courts. The Court made it clear that High Courts would handle these petitions. Solicitor General Tushar Mehta, representing the Union government, supported this approach, pointing out that multiple petitions were already pending in High Courts in Delhi, Gauhati, Kerala, and Tripura. Mehta stated,
“It is always good to have the opinion of a high court before the matter reaches the highest court of the land.”
The Bench agreed and instructed the petitioners’ lawyers to move their cases to the appropriate High Courts. Senior advocate Arvind Datar represented one of the petitioners during the hearing.
The petitions mainly challenge the 2019 amendments to the UAPA, especially Section 35, which gives the Central Government the power to label individuals as “terrorists” under Schedule IV of the Act. This power was previously only available to label organizations.
The lead petition, filed by Sajal Awasthi in 2019, argues that these amendments violate due process, as Sections 35 and 36 do not provide clear criteria or procedures for arrest. This gives the government unchecked power to label individuals as terrorists based on mere suspicion.
In September 2019, the Supreme Court admitted Awasthi’s petition and issued a notice to the Union government. On Tuesday, as Awasthi’s lawyer was unavailable, the Bench requested that he return with instructions regarding the petition’s withdrawal at the next hearing.
FOR MORE LEGAL UPDATES FOLLOW US ON YOUTUBE