Two petitions have been filed challenging the constitutional validity of Sections 35 and 36 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) as amended in 2019. The first petition is filed by the Association for Protection of Civil Rights (APCR), a non-profit civil rights group. The second petition is filed by Sajal Awasthi, an Indian citizen.
Through Sections 35 and 36, the government now has the power to categorise individuals as ‘terrorists’. The Petitioners argue that this amendment gives arbitrary power to the government to target voices of dissent and opposition. Further, Sections 35 and 36 violate the right to equality under Article 14, right to freedom of speech under Article 19(1)(a) and right to life with dignity under Article 21 of the Constitution.
What do the Petitioners seek?
The petitioners seek that Sections 35 and 36 be struck down and declared unconstitutional. On the ground that these sections violate Article 14, 19(1)(a) and 21 of the Constitution of India, 1950.
Grounds for the Petition:
S.35 empowers the government to declare any individual as a terrorist in the Fourth Schedule of the UAPA. The government can declare and notify based on mere belief, without an elaborate process.
No fair hearing opportunity has been mandated. The basis on which a person can be declared a terrorist is vague and unclear: would it be on the filing of an FIR or upon conviction of a trial court? While S. 36 allowed an individual notified as a terrorist to appeal to the Government, its operability is difficult. An individual is not informed of the ground for arrest. There is no provision for oral hearing at the state of appeal.
The Supreme Court in Puttaswamy v. Union of India reiterated that the right to life and personal liberty could only be curtailed through the due process of law. Sections 35 and 36 fail the due process standard.
The impugned section fails to provide safeguards against the high potential of discretionary power. While the procedure to declare an organization a terrorist has substantive safeguards, it is amiss for an individual. With no clear objective behind the distinction between an organization and an individual, the treatment of an individual is disproportionate and unreasonable. This does not meet the ‘reasonable classification’ test under Article 14.
Moreover, the lack of fair hearing violated natural justice principle of audi alteram partem or the rule of fair hearing. Invoking Union of India v Tulsiram Patel, (1985) the petition contends that violation of natural justice results in arbitrariness and violates Article 14.
The petition further referred to People’s Union for Civil Liberties v Union of India, (2004). The Court had ruled that if human rights are violated in the process of combating terrorism, it will be self-defeating.
Dissent is an integral aspect of the right to free speech under Article 19(1)(a) as interpreted in Maqbool Fida Hussain v. Rajkumar Pandey, (2008). The impugned Sections, under the guise of prohibiting terrorism, are aimed to target critical speech against the government.
The amendment violates the international conventions ratified by India. Specifically, legal principles under the International Convention on Civil and Political Rights, United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism are violated under the Amendment.