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Supreme Court issues notice in petitions challenging UAPA amendment
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Supreme Court issues notice in petitions challenging UAPA amendment

Shruti Mahajan

The Supreme Court today sought a reply from the Centre in petitions challenging the constitutional validity of the amendments to the Unlawful Activities Prevention Act (UAPA).

The Bench of Chief Justice of India Ranjan Gogoi with Justice Ashok Bhushan issued notice immediately upon the matter coming on board.

The UAPA Amendment Bill was passed in the Lok Sabha on July 24 and in the Rajya Sabha on August 2. The Bill empowers the government to declare individuals as terrorists as well as to seize their properties and impose a travel ban on them. The Bill received President Ram Nath Kovind’s assent on August 9.

At least two petitions were filed thereafter, challenging these amendments, one by an individual Sajal Awasthi and another by NGO Association for Protection of Civil Rights (APCR).

The validity of Sections 35 and 36 of the UAPA, as amended by the UAPA Amendment Act, 2019 have been assailed by the NGO. The amended Sections allow the government to notify any individual as a terrorist. The petitioner NGO contends that such labeling will lead to a lifelong stigma. It would also be against the Fundamental Rights guaranteed under Articles 14, 19, and 21 of the Constitution of India.

“The amendment infringes upon the right to reputation and dignity which is a fundamental right under Article 21, without substantive and procedural due process. Notifying an individual as a terrorist without giving him an opportunity of being heard violates the individual’s right to reputation and dignity which is a facet of Right to life and personal liberty under Article 21 of the Constitution, ” the petition states.

In Awasthi’s petition, filed by advocate Pawan Reley, it has been averred that the UAPA amendment is contrary to the Rights guaranteed under Part III of the Constitution of India. It states,

“It is well-settled and established position of law that dignity and liberty of an individual is inalienable under the regime of our controlled constitution and that the State is under an obligation to preserve the same. Though there have been certain instances wherein the State has adopted a contrary approach to the above-stated fact and it is pertinent to note here that the Unlawful Activities (Prevention) Amendment Act, 2019 is an example of such an encroachment upon the Fundamental Rights.”

Labeling an individual as a terrorist without granting him a hearing and following due process is objected to in both the petitions. Further, the plea goes on to submit that conferring of such “discretionary, unfettered and unbound” powers upon the Government, so as to notify an individual as a terrorist, is also against the right to equality as enshrined in the Constitution under Article 14.

If an individual is labeled a terrorist even before the commencement of the trial or application of judicial mind, it would be violative of the requirement of following a procedure established by law, Awasthi’s plea adds. It would also be violative of an individual’s right to reputation. Further, this lack of opportunity of hearing, according to the petitioner, will have a direct and adverse effect on the Right to Freedom of Speech under Article 19(1)(a) of the Constitution of India.

It is also the petitioner’s case that the amendment seeks to curtail this right to dissent under the garb of curtailing terrorism. It is submitted,

“The UAPA, 2019 empowers the ruling government, under the garb of curbing terrorism, to impose indirect restriction on right of dissent which is detrimental for our developing democratic society. India is a democracy and every citizen of India has a fundamental right to dissent but presence of draconian law and provisions as contained in Section 35 and 36 of the UAPA, 2019 directly encroach upon the same.”

APCR was represented by Senior Advocates Shekhar Naphade and Huzefa Ahmadi and Advocate Fauzia Shakil.