The Supreme Court today – Friday, Sep 6 – issued notice to Centre, seeking its reply on the amendments to anti-terror law Unlawful Activities Prevention Act that empower the government to designate any individual as terrorist.

The Supreme Court bench of Chief Justice of India Ranjan Gogoi and Justice Ashok Bhushan issued the notice on petitions filed by Sajal Awasthi and NGO Association for Protection of Civil Rights (APCR) which said the amended law allowed the government to freely encroach upon the fundamental rights of dignity, free speech, dissent and reputation.

The petitions said the UAPA Amendment Act of 2019, passed by the Parliament, conferred the Centre with “discretionary, unfettered and unbound powers” to categorise a person as a terrorist – powers which could be misused even to curb dissent.

The UAPA Amendment Bill was passed in the Lok Sabha on July 24 and in the Rajya Sabha on August 2 amid criticism by the opposition parties and civil liberties lawyers. 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.

Before this amendment, in line with the legal presumption of an individual is innocent until proven guilty, an individual who was convicted in a terror case was legally referred to as a terrorist, while those suspected of being involved in terrorist activities are referred to as terror accused. The amended law does not clarify the standard of proof required to establish that an individual is involved or is likely to be involved in terrorist activities.

It also does not require the filing of cases or arresting individuals while designating them as terrorists.

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Home Minister Amit Shah while discussing the Bill in the Rajya Sabha had said, “A four-level scrutiny has been provided in the amendment and no human rights will be violated.” He also said that declaring individuals as terrorists is required as they float different organisations once an institution is banned. He ignored the questions about why this should be done arbitrarily.

The law could now be used by the government to bring disrepute on a person, and even worse, rob him or her liberty. The heavy burden to prove the entire government machinery wrong would lie on the person.

The petitions challenge the validity of Sections 35 and 36 of the UAPA, as amended by the UAPA Amendment Act, 2019. “The new Section 35 of the UAPA Act, 1967 empowers the Central government to categorise any individual as ‘terrorist’ and add name of such a person in Schedule 4 of the Act,” said Awasthi.

The petitioner NGO contends that such labelling 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.

Awasthi’s petition says 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.”

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The petitions object to labelling an individual as a terrorist without granting him a hearing and following due process. 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 labelled 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.

Threatens right to dissent

It is also the petitioner’s case that the amendment seeks to curtail this right to dissent under the garb of curtailing terrorism. “The right of dissent is a part and parcel of fundamental right to free speech and expression and therefore, cannot be abridged in any circumstances except for mentioned in Article 19 (2). 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,” it said.

“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.”

 Right to reputation

The petition said the right to reputation was an intrinsic part of fundamental right to life with dignity under Article 21 of the Constitution and tagging an individual as “terrorist” even before the commencement of trial or any application of judicial mind over it, did not amount to following the ‘procedure established by law’.

Instead of preserving the dignity of an individual, the government sought to encroach upon it, the petition said.