Amidst broader deliberations regarding civil liberties and the delicate equilibrium between national security and individual rights, the Supreme Court has been petitioned to examine the constitutionality of specific clauses within the Unlawful Activities (Prevention) Act (UAPA).
The Supreme Court has been approached to scrutinize the constitutionality of certain provisions of the Unlawful Activities (Prevention) Act (UAPA). This legal challenge comes amidst broader discussions on civil liberties and the balance between national security and individual rights.
The case, which consolidates petitions from various individuals and organizations, including UAPA-accused activist Umar Khalid, was set for a hearing by a bench comprising Justices Bela M. Trivedi and Justices Pankaj Mithal. Khalid, who had previously sought bail and challenged the UAPA’s constitutionality through a writ petition under Article 32 of the Constitution, opted to withdraw his bail plea, citing a change in circumstances. His lawyer, Senior Advocate Kapil Sibal, informed the court of this decision, stating Khalid’s intention to “try his luck” in the trial court while still aiming to contest the legality of the UAPA provisions in question.
The court, acknowledging Sibal’s submission, allowed the withdrawal of the bail application and proceeded to examine the remaining petitions challenging the UAPA. Senior Advocate Huzefa Ahmadi, representing an individual and a non-governmental organization (NGO), argued against Sections 15, 35, 36, and 38 of the UAPA, claiming they infringe upon Articles 14, 19, and 21 of the Constitution and contradict India’s obligations under the International Covenant on Civil and Political Rights (ICCPR).
However, the bench raised concerns about the standing of the petitioners and the maintainability of their challenge, with Justice Trivedi questioning,
“How are these petitioners affected? The petitioner must be an aggrieved party and there must be a violation of their rights. Only then can the question of challenging the vires of a legislative provision would arise.”
Despite Ahmadi’s argument that public-spirited individuals and organizations could file public interest litigations, the court expressed reservations about what it termed ‘proxy litigation.’
Justice Mithal highlighted the need for caution, stating,
“Will it not be proxy litigation? In PIL matters, the doctrine of locus standi may not apply. But, nonetheless, there has to be a semblance of involvement. Otherwise, it will be a proxy litigation on behalf of other persons who do not want to come to the forefront. That would not be permissible. We have to be careful about not letting such proxy litigation.”
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The court then shifted its focus to a petition filed by an individual directly affected by the UAPA, indicating a preference for hearing ‘concrete’ cases first. Advocate Prashant Bhushan commenced oral submissions on behalf of two advocates and a journalist booked under the UAPA by the Tripura police, challenging the act’s definition of ‘unlawful activities’ and its bail provisions.
The State of Tripura’s counsel argued that the case should be referred back to the high court, emphasizing that the main prayer was for the quashing of the first information report (FIR). Bhushan countered, aiming to demonstrate the UAPA’s alleged misuse by police authorities across the country and questioning the justification for invoking the act for activities such as tweeting about state violence.
As the debate unfolded, Justice Trivedi prompted the petitioners to decide whether to continue with the Supreme Court proceedings or revert to the high court. With the counsel indicating the need to ‘seek instructions,’ the bench adjourned the hearing, allowing the petitioners time to deliberate on their next steps.
This case underscores the ongoing tension between enforcing anti-terrorism laws and protecting fundamental rights, highlighting the critical role of the judiciary in navigating these complex legal and ethical terrains.
Amreen v. Superintendent of Police | Writ Petition (Criminal) No. 88 of 2022 and connected matters