UAPA Challenge | Supreme Court Allows Petitioners Time To Decide If They Want To Approach High Court

These petitions, grouped together for adjudication, were slated to be heard by a bench of Justices Bela M Trivedi and Pankaj Mithal alongside UAPA-accused and activist Umar Khalid's bail plea and a writ petition filed by him under Article 32 of the Constitution challenging the constitutionality of certain provisions of India's anti-terror statute.

However, in an unexpected turn of events, Khalid withdrew his bail plea during today's proceedings, citing a change in circumstances. Senior Advocate Kapil Sibal, representing Khalid, informed the court of his client's decision, stating that Khalid intended to 'try his luck' in the trial court. Nonetheless, Sibal confirmed his intent to address the court on the legality of the UAPA provisions challenged in Khalid's writ petition.

Recording Sibal's submission, the bench granted permission for the bail application to be withdrawn. Subsequently, the court proceeded to hear the remaining petitions challenging various sections of the UAPA.

Senior Advocate Huzefa Ahmadi led the charge, representing an individual and a non-governmental organisation (NGO) who have assailed the constitutionality of Sections 15, 35, 36, and 38 of the UAPA. Ahmadi asserted that these provisions, which define terrorism and terrorist activities and outline procedures for designating individuals as terrorists, contravene Articles 14, 19, and 21 of the Constitution, as well as India's international obligations under the International Covenant on Civil and Political Rights (ICCPR).

However, the court at this juncture raised questions regarding the standing of the petitioners and the maintainability of their challenge.

Justice Trivedi said, “How are these petitioners affected? The petitioner must be an aggrieved party and there must be a violation of their rights. Only then can the question of challenging the vires of a legislative provision would arise.”

Ahmadi argued that public-spirited individuals and organisations could file public interest litigations, citing past precedents where human rights organisations had initiated similar actions. The court, however, expressed reservations about allowing what it deemed 'proxy litigation'.

“Will it not be proxy litigation? In PIL matters, the doctrine of locus standi may not apply. But, nonetheless, there has to be a semblance of involvement. Otherwise, it will be a proxy litigation on behalf of other persons who do not want to come to the forefront. That would not be permissible. We have to be careful about not letting such proxy litigation,” Justice Mithal said.

“Ultimately it is a question of law!” Ahmadi replied.

Despite protestations from the senior counsel, the court opted to hear a petition filed by an individual directly affected by the UAPA, suggesting that Ahmadi could provide support while it heard 'concrete' cases first.

Advocate Prashant Bhushan then began oral submissions on behalf of two advocates and a journalist booked by the Tripura police under the UAPA, challenging the act's definition of 'unlawful activities' and its bail provisions.

However, objections were raised against this petition, with the counsel representing the State of Tripura saying, “Their main prayer is for quashing of the first information report. The second prayer is with respect to the vires. This should go back to the high court.”

Bhushan countered –

“We want to demonstrate how the UAPA is being abused by various police authorities across the country. Just see how the act has been invoked against these people…In this petitioner, we have challenged the FIR as being a gross abuse of process of law. An FIR was lodged and a case under the UAPA was registered. For what? For tweeting 'Tripura is burning'? At a time when news of the outbreak of the violence in the state was being widely reported in the media and the high court also took suo motu cognisance…”

The counsel appearing for the State of Tripura however insisted that the appropriate forum for this adjudication was the high court. He argued, “All these facts that my learned friend has mentioned are no justification to surpass the high court's jurisdiction under Section 482. There is no prohibition on a high court entertaining a challenge against the UAPA.”

“Mr Bhushan, we take it that you don't want to go to the high court?” Justice Trivedi asked, in response to this submission.

“If Your Lordships feel that we should…” Bhushan began.

Justice Trivedi interjected, “We don't feel anything. It's your call. If you want to proceed, we will not prevent you. This goes for other petitioners. You will have to take a call on whether you would like to continue with these proceedings or go back to the high court.”

When the counsel indicated that they would have to 'seek instructions', the bench allowed petitioners time to deliberate on whether to proceed with the proceedings or revert to the high court and adjourned the hearing until tomorrow.