The Court is hearing two separate challenges to the constitutional validity of the 2019 amendments to the Unlawful Activities (Prevention) Act, 1967.
The Unlawful Activities (Prevention) Act, 1967 (‘Act’) is meant to outlaw and penalize unlawful and terrorist activities, which pose a threat to the integrity and sovereignty of India. It also provides wide-ranging powers to the Central Government to designate organizations as terrorist organizations and also prescribes the penalties for taking part in the activities of such organizations.
In 2019, the Parliament carried out certain amendments to the Act (‘Amendment’) and the same was notified on 8 August. The most significant change brought about by the Amendment was that it altered Section 35 and gave the Central Government the power to notify an individual as a ‘terrorist’ under Schedule IV of the Act. Prior to the Amendment, only organizations could have been designated this way and individuals were not covered.
Detractors of the Amendment argue that it gives arbitrary powers to the executive and violates an individual’s right to due process of law, right to dissent, and right to reputation. Two separate petitions were filed in the Supreme Court challenging the constitutional validity of the Amendment on the above grounds. These petitions were tagged by the Court and on 7 September 2019, the Court issued notice to the Union Government.
Although the Act has been in force since 1967, the Parliament only inserted a dedicated Chapter towards punishing terrorist activities in 2004 by way of the UAPA Amendment Act, 2004 (Chapter IV). Thereafter, amendments were made to the legislation in 2008 and 2013 as well.
Prior to the redesigning of UAPA, terrorist activities were primarily dealt with under the now repealed Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and Prevention of Terrorism Act, 2002 (‘POTA’). Over the years, a number of challenges have been made to the constitutional validity of both TADA and POTA.
These challenges were mainly on the ground that the Union did not have the legislative competence to enact these laws. For instance, in Kartar Singh v.State of Punjab, the validity of TADA was challenged on the ground that it dealt with the issue of ‘public order’, which was within the legislative domain of states. Nevertheless, the Court upheld the validity of TADA. The Court held that ‘public order’ covered issues of lesser gravity and more serious threats covered in TADA fell within the Union’s domain relating to national defence.
A similar challenge was mounted against POTA in PUCL v Union of India, which too was repelled by the Court on similar grounds. By contrast, the UAPA has never been challenged on the ground of legislative competence.
The Court has scrutinized specific provisions of the above legislations on various occasions. For instance, the Court in Sri Indra Das v. State of Assam, read down Section 10 of UAPA and Section 3(5) of TADA, both of which made mere membership of a banned organization, criminal. The Court held that a literal interpretation of these provisions would make them violative of Articles 19 and 21 of the Constitution. This was in line with the previous decision in Arup Bhuyan’s case where the Court had held 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’.
1. Whether the Amendment places a fetter on the right to dissent and thus violates the right to freedom of speech and expression, under Article 19(1)(a)?
2. Whether the power to categorise someone as a terrorist without a trial and without any judicial application of mind goes against the settled canons of criminal jurisprudence?
3. Whether the unilateral power of the executive under Section 35 of the Act to categorise an individual as a terrorist and include them as such in Schedule IV goes against the principles of rule of law, natural justice and the person’s fundamental right to reputation?
4. Whether the 2019 amendment (‘Amendment’) to the Unlawful Activities (Prevention) Act, 1967 (‘Act’) is manifestly arbitrary and violative of Articles 14 and 21 of the Constitution?