Plea In SC Challenges The Unfettered Power Of Government To Designate An Individual As A Terrorist[Read Petition]

The petitioner is the secretary of an organization named 'Solidarity Youth Movement' & has been actively fighting against the provisions of the UAPA, which she has alleged to be "draconian" and contends, "are often misused".

The petition filed through Advocate Jaimon Andrews contends that 2019 amendment, which extends the scope of Section 35 of the UAPA to individuals being declared as "terrorists", violates basic tenets of the Constitution of India.

Prior to the Amendment Act of 2019, this categorization did not encompass individuals & only organisations were declared "terrorist organisations".

The petition has averred that attributing the "tag" of a terrorist to an individual has serious repercussions on an individuals freedom of speech and expression as well as their right to life & liberty.

In light of this, the plea asserts,

"Allowing the Respondent herein to designate individuals as terrorists will make matters worse as no commensurate safeguards for this arbitrary power have been introduced".

Furthermore, the Petitioner has contended that as section 35 of the UAPA does not specifically lay down powers of the central government in terms of the applicable stage that a person may be designated as a "terrorist" and thus contravenes not only the principles of natural justice which elucidate, inter alia, the principle of 'innocent until proven guilty' but also the International Convention on Civil and Political Rights, 1967 which recognizes the presumption of innocence as a universal human right.

Inter alia, it contends that specifically, Section 36(4) of UAPA, suffers from procedural fallacies, such as not providing information or any material basis to the person being categorized as a "terrorist", which according to the petitioner's averments, are contradictory to the cardinal principles of natural justice, nemo judex in causa sua and audi alteram partem. Moreover, in terms of the act, it states that the burden of proof lies on the individual who has been designated as a terrorist.

"The foremost fallacy with this lies in the fact that the burden of proof is reversed and placed on the individual to satisfy the government that he/she is not a terrorist. This would have to be done before a Committee constituted by the Central Government, which was closely involved in the issuance of the said notification in the gazette; furthermore, no express provision has been stipulated in the Section to ensure that an opportunity of oral hearing has been secured, thus violation two cardinal principles of natural justice, nemo judex in causa sua and audi alteram partem", states the plea.

The petition also highlights the alleged unfettered powers that have been provided to the government to declare an individual as a terrorist only if it believes that they are involved in terrorist activities and no objective criterion exists for such a categorization.

The petitioner has further averred that section 2(o) of the Act defines "unlawful activity" which has a wide and unfettered reading in the act. It goes on to point out that the provision seeks to criminalise, even those peaceful ideas, thought processes & actions that have no propensity to violence as it includes "any action which causes or is intended to cause disaffection against India".

"This is the crucial difference between Section 124A and Section 2(o), since the latter makes no distinction between peaceful, lawful activities on the one hand, and violent activities on the other, that have the intent or the tendency to create public disorder", the petition contends.

The petitioner has contended that the extension of the period of judicial custody from 60 days to 90 days to 180 days for all offences irrespective of the prescribed punishment for the offences is unduly onerous and antithetical to the provisions of criminal jurisprudence.

In September last year, the then CJI Ranjan Gogoi issued notices to petitions challenging the constitutional validity of the UAPA including one by the Association for Protection of Civil Rights (APCR) which had also averred that 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.

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