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.
1) Whether the Amendment places a fetter on the right to dissent and thus violates the right to freedom of speech and expression?
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?