Constitutionality of UAPA Amendment | Day 1: Supreme Court inclined to dispose of petition
Constitutionality of UAPA AmendmentJudges: Sanjiv Khanna CJI, P.V. Sanjay Kumar J, K.V. Viswanathan J
Today, a bench of Chief Justice Sanjiv Khanna with Justices P.V. Sanjay Kumar and K.V. Viswanathan granted petitioner, Sajal Awasthi, a week’s time to convince the Supreme Court to hear their petition challenging amendments to the Unlawful Activities (Prevention) Act, 1967 (UAPA).
Awasthi challenged Sections 35 and 36 of the UAPA, which were amended in 2019. Section 35 states that the Union can add the name of an individual in the Fourth Schedule of UAPA, which contains names of individuals designated as terrorists. The petition argues that this gives “discretionary, unfettered and unbound powers” to the Union which violates “principles of justice and equality” under Article 14. It also contends that designation of a person as “terrorist” violates their right to reputation under Article 21. Further, there is no procedure for an individual to make their case before they are designated as a “terrorist”. Lastly, it strikes at a person”s right to dissent under Article 19(1)(a), which grants the fundamental right to speech.
Section 36 allows for denotification of an individual recognised as “terrorist”. Awasthi claims that the operation of the provision is “flawed” as it lacks an “impartial procedure” involving a judicial member.
Supreme Court: High Court’s can proceed hearing challenges
Solicitor General Tushar Mehta pointed out that the Delhi High Court is simultaneously hearing challenges to the UAPA amendment. Senior Advocate Arvind Datar, appeared for the Foundation of Media Professionals, a group of senior journalists advocating for media freedom, who raised the same challenge in the Delhi High Court. He stated that the matter is going to be taken up tomorrow in the High Court (29 January) where he is set to appear.
The bench was then informed that other high courts such as Gauhati, Jharkhand, Kerala and Bombay are hearing similar challenges. CJI Khanna expressed his intent to dispose of the petition allowing the high courts to continue the proceedings. “Why should we become the Court of the first instance?” he stated.
The bench provided a week’s time to the counsel representing Awasthi to “obtain instructions why this Court [Supreme Court] should entertain the Writ Petition under Article 32 of the Constitution”. On Datar’s request, the bench clarified that high courts can continue hearing the petitions in the meantime.