The law enabling its usage as a tool of repression rather than a law that combats terrorism: Petitioner challenging UAPA, 1967& 2019

The Supreme Court observed that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void

In present petition, the plea has been filed in the Supreme Court under Article 32 of the constitution seeking, inter alia, a writ of mandamus declaring the Unlawful Activities (Prevention) Act, 1967 and to declare the Unlawful Activities (Prevention) Amendment Act, 2019 as unconstitutional and violative of fundamental rights enshrined under Article 14 and 21 of the Constitution of India.

Background:

The Unlawful Activities (Prevention) Act, 1967 was enacted by the Parliament with objective of more effective prevention of certain unlawful activities of individuals and association. In pursuance of the said objective, the Union Home Minister introduced Unlawful Activities (Prevention) Amendment Bill, 2019 in Lok Sabha, which was passed by the Lok Sabha on 24.07.2019 and was later passed by the Rajya Sabha on 02.08.2019. The Unlawful Activities (Prevention) Amendment Act, 2019 was brought into force on 14.08.2019.

Brief facts of the case:

Being aggrieved by above action, the petition was filed by the petitioner no. 1 Biyumma and petitioner 2.  Solidarity Youth Movement through its Secretary Umar M. under Article 32 of the Constitution of India. ‘Solidarity Youth Movement’ is a movement focused on attainment of an equitable and sustainable society by channeling revolutionary spirit of the youth. Among the diversified activities of the organization, is its unwavering and relentless fight to secure human rights of all individuals.[1] The Respondent is the Union of India.

In September 2019, the then CJI Ranjan Gogoi issued notices to petitions challenging the constitutional validity of the UAPA including one by the Association for Protection of Civil Rights (APCR) which had also averred that the new Section 35 of the UAPA Act, 1967, empowers the central government to categorize any individual as ‘terrorist’ and add name of such a person in Schedule 4 of the Act[2].

Questions of law:

1. Whether the Unlawful Activities Prevention Act, 1967 is violative of fundamental rights enshrined under Part III of the Constitution of India?

2. Whether the Unlawful Activities (Prevention) Amendment Act, 2019 is violative of fundamental rights enshrined under Part III of the Constitution of India?

Key features:

The Act and Amendment to the Act is challenged on the following ground:

  • Section 35 of the UAPA authorized only categorization of organization as “terrorist organizations”. However, subsequent amendment, this power has been extended to include within its scope the categorization of individuals as terrorists as well. Its consequent repercussion on an individual’s freedom of speech and expression secured under Article 19 (1) (a) as well as an individual’s right to life and personal liberty secured under Article 21 of the Constitution of India.
  • Section 35 of the UAPA does not specify the stage at which an individual may be designated as a “terrorist”, whether the Central Government would be empowered to do so at the stage of registration of a FIR, or whether power can be exercised only upon an individual’s conviction in a case related to terrorism. This is contrary to the principle of ‘innocent until proven guilty’ in criminal jurisprudence and violation of International Convention on Civil and Political Rights, 1967 which recognizes the presumption of innocence as a universal human right.
  • It was further submitted by the petitioner that the notification for designation of an individual as a “terrorist” in the official gazette would not require the Government to assign any reasons for the same. Section 36 of the Act which provides for denotification of a terrorist organization which may be made to the Central Government.

a. A challenge to the notification would lie before the same executive body that exercised its powers under Section 35 of the Act.

b. An individual desirous of challenging the categorization is not informed of the grounds, or the materials on the basis of which the categorization has taken place. In the absence of this, a provision for challenge is rendered nugatory.

  • Section 36(4) of the Act states that in the case of rejection of an application, the applicant may apply for a review before a Review Committee. The burden of proof is placed on the individual to satisfy the government that he/she is not a terrorist. No express provision has been stipulated in the Section to ensure that an opportunity of oral hearing has been secured, thus violation two cardinal principles of natural justice, Nemo Judex In  Causa Sua and Audi Alteram Partem.  The law also fails to prescribe a time limit for the Government to constitute a review committee and the duration within which the said committee would be required to decide on the merits of the application, which enables continued disregard for an individual’s fundamental rights, particularly Articles 19 and 21.
  • The UAPA under Sections 38, 39, and 40 provide for punishment for an individual associated with an organization which is included in the First Schedule, i.e. as a “terrorist organization”, whether the said association is in terms of membership, support of funding. Therefore, the Act, prior to the amendment had provided for mechanisms to deal with individuals associated with terrorist organizations. The amendment does not provide any legal consequence in case an individual is designated as a terrorist. The inclusion of one’s name in the Fourth Schedule as a terrorist per se will not lead to any conviction, imprisonment, fine, disqualifications or any sort of civil penalties. Thus, the petitioner submits that the law enabling its usage as a tool of repression rather than a law that combats terrorism.
  • It was further submitted by the petitioner that the Act confers upon the Central Government unfettered powers to declare an individual as a terrorist only if it believes that it is involved in terrorism. Therefore, no remote attempt has been made by the legislation to lay down an objective criterion for such categorization. The law remains silent as to who would be the decision-making authority in such a case.
  • Chapter II of the Act requires the notification to specify the grounds on which the notification was issued. Section 3(3) of UAPA provides that for the notification to be effective, the same has to be confirmed by the Tribunal. Thereafter, under Section 4, the Tribunal is required to conclusively adjudicate upon the matter only after notice to the association to show cause. The manner in which the inquiry and judicial determination process by the tribunal is provided under Section 5, which ensures that the process is not carried out in accordance with the whims and fancies of the Central Government. However, in cases of designation of an individual as a terrorist, no such corollary safeguard has been put in place. Thus petitioner submits that, ordinarily, a greater threshold for scrutiny and compliance ought to have been laid down by the Act with regard to the categorization of individuals as the mere existence of such powers threatens to jeopardize fundamental rights of individuals.
  • Rule 3 (2) of the UAPA Rules provides that in cases where the Government claims that certain books of accounts or other documents produced before the Tribunal are confidential in nature, the Tribunal shall not make them part of the proceedings, or allow inspection to any party “other than a party” to the proceedings before it. The rule is clear that inspection can be denied to all except parties to proceedings. It further empowers the Tribunal to consider records which are “confidential” in nature without the same being part of the proceedings. The petitioner while considering this aspect, questioned that:

a. Can evidence that is invoked as a justification to ban an association be withheld from the association itself?

b. Given that the authority of Rule 3(2) flows from Section 4 (3) of the Act, what is the meaning of “public interest”, and to what extent must the Tribunal scrutinize the government’s invocation of “public interest”?

  • Section 2(o) of the Act defines “unlawful activity”. It has the potential to criminalize even those peaceful ideas, thought processes and actions that have no propensity to violence, or create public disorder or disturbance of law and order. Furthermore, sub-section (iii) of Section 2(o) which includes “any action which causes or is intended to cause disaffection against India”, reiterates the offence of Section 124A of the Indian Penal Code relating to sedition, without taking into account the two explanations of the same which clarify that causing disapprobation of the actions of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence. The petitioner submits, this is the crucial difference between Section 124A and Section 2(o), since the latter makes no distinction between peaceful, lawful activities on the one hand, and violent activities on the other, that have the intent or the tendency to create public disorder.
  • First Schedule appended to the Act provides a list of banned terrorist organizations. While naming these organization, the Act continues to employ ambiguous phraseology such as “all its formations and front organizations”, in the absence of a definitive definition of what constitutes formations and front organizations. In the context of the proviso to Section 38 which allows an accused to disassociate himself/herself from a terrorist organization if he/she is able to prove that the association pertained to a period when the organization was not declared terrorist, and since the time of its declaration as a terrorist organization, the accused has not participated in any of its activities. The mischief of the phrase lies in the ability to rope in as many organizations as “front organizations”, on a post facto basis thereby depriving an accused of a defence that was otherwise available to him under Section 38 of the Act.
  • Section 43D which provides for modified application of certain provisions of the Code of Criminal Procedure is manifestly arbitrary. It would be pertinent to note that under the section, a single remand can now be extended to a period of 30 days as opposed to 15 days, and the chargesheet can be filed within 90 days which may be extended up to 180 days. This classification fails to distinguish between offences that carry a minimum sentence of two years and those which carry a sentence of death or life imprisonment and thus it is violation of Article 21 of the Constitution of India as the extension of the period of judicial custody from 60 days to 90 days to 180 days for all offences irrespective of the prescribed punishment for the offences is unduly onerous.
  • Section 43-D (5) of the Act states that if the public prosecutor opposed bail then the Court shall deny bail if after perusing the case diary or charge-sheet, it is of the opinion that there are reasonable grounds for believing that the accusations against such person is prima facie true. The question before this Hon’ble Court in Zahoor Ahmad Watali v. National Investigating Agency was with regard to the interpreting phrase of “prima facie true” which is at the heart of Section 43-D (5). The Court stated that no elaborate examination or dissection of the material was required, while also broadening the scope of inquiry for a Court beyond the case diary and charge-sheet to consider “all other relevant material/evidence produced by the investigative agency”. Therefore, the Courts would not proceed to provide cursory look not only to the charge-sheet and case-diary but also proceed to evaluate more material with the same benign prima facie gaze.

The petition ends with following prayers:

1. Issue a writ, order, or direction in the nature of mandamus declaring the Unlawful Activities Prevention Act, 1967 as unconstitutional;

2. Declare the Unlawful Activities (Prevention) Amendment Act, 2019 as violative of fundamental rights enshrined under Article 14, and 21 of the Constitution of India.

3. Pass any other order or relief in favour of the Petitioners in the interest of justice, equity, and good conscience.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1]https://www.livelaw.in/pdf_upload/pdf_upload-371029.pdf

[2]https://www.livelaw.in/top-stories/plea-in-sc-challenges-the-unfettered-power-of-government-to-designate-an-individual-as-a-terroristread-petition-153654?infinitescroll=1

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