Brief History: Challenges to the UAPA

On August 2nd 2019, the Parliament passed The Unlawful Activities (Prevention) Amendment Act, 2019 (‘Amendment Act’). Soon afterwards, on August 8th 2019, it received the assent of the President.

The Parliament, through the Amendment Act, made a number of changes to the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’). The primary change though was to Section 35 of UAPA.

Before the amendment, this provision only allowed organizations to be categorised as ‘terrorist’. With this amendment to Section 35, the Government can now categorise individuals as a terrorists, if it believes that the individual is involved in terrorism. Once the person is so categorized, their name will be added to Schedule 4 of the Act.

Challenges to the Amendment Act

So far, 2 petitions have been filed against the Amendment Act – Sajal Awasthi v Union of India and Association for Protection of Civil Rights v Union of India – with Sajal Awasthi being the lead petition.

Both petitioners have more or less raised similar arguments against the amendment. While this post only outlines the grounds raised in the lead petition, they overlap greatly with those raised by the Association for Protection of Civil Rights.

The overarching argument of both Petitioners is that an individual may be identified as a terrorist without any judicial scrutiny and even before the commencement of a trial. Thus, they challenge the Amendment Act as being violative of the right to equality (Article 14), free speech (Article 19) and life (Article 21) of the Constitution.

As per the Awasthi petition, the right to equality is violated since the provision does not provide any detailed grounds based on which one may be categorized as a terrorist. For this reason, the provision is ‘manifestly arbitrary’. The doctrine of manifest arbitrariness, in brief, states that if a law is made without an adequate governing principle and is excessive or disproportionate in nature, the same is manifestly arbitrary and thus antithetical to the right to equality.

Awasthi also submits that the amendment goes against the right to dissent, which is a facet of the right to freedom of speech. They rely on and quote from the decisions in Romesh Thappar v State of Madras and Maqbool Fida Hussain v Rajkumar Pandey to drive home the importance of free speech and the concomitant right to dissent.

As to the argument based on Article 21, Awasthi claims that the right to reputation is an integral aspect of right to life and this right will be taken away by the arbitrary exercise of powers under Section 35.

Historical challenges to UAPA and predecessor legislations

Although the UAPA has been in force since 1967, the Parliament inserted a dedicated Chapter towards punishing terrorist activities only 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 this 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.

Nevertheless, the Court has scrutinised 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’.

Recent cases related to UAPA

Recently, the application of the UAPA was tested before the Supreme Court in the case involving the arrest of certain activists in relation to the Bhima Koregaon violence.

In this case, on August 28th 2018, the Maharashtra Police had carried out raids across different parts of India, resulting in the arrest of five activists: Varavara Rao, Sudha Bharadwaj, Gautam Navlakha, Vernon Gonzalves and Arun Ferreira. The Police alleged that the activists were responsible for the Elgaar Parishad in January 2018, which allegedly had triggered the Bhima Koregaon violence.

On August 30th, five eminent citizens submitted a joint petition to the Supreme Court challenging the ‘arbitrary arrests’ of these activists. The petitioners contended that the Police had violated the activists’ rights to equality before the law, free expression and personal liberty. They argued that the arrests were arbitrarily made to curb dissent. They emphasised that the activists had been booked under UAPA. Further, they claimed that the Maharashtra Police had made serious procedural lapses during the raids. In light of this, they sought the formation of a Special Investigation Team (SIT) to conduct an independent investigation.

On September 28th 2018, by a 2:1 majority, the Court rejected the plea for a SIT probe. A M Khanwilkar J authored the majority opinion, on behalf of Dipak Misra CJI and himself. D Y Chandrachud J authored the dissenting opinion.

Looking forward

The present challenge against the 2019 Amendment Act is only in its preliminary stage, with the Union yet to file its reply. Nevertheless, given the nature of the challenge and past criticisms of the legislation as draconian, the matter is set to provide a good testing ground for the extent of the Government’s discretion in anti-terror legislations.