The Association for Protection of Civil Rights has moved the Supreme Court challenging the Constitutional validity of Section 35 and Section 36 of the Unlawful Activities (Prevention) Act as amended by the UAPA Amendment Act 2019, paving the way for government to notify an individual as terrorist.
The NGO rues the lifelong stigma which attaches to a person notified as terrorist even after being denotified and argues that the recent amendment infringes the Fundamental Rights guaranteed under Article 14, 19(1)(a), 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," it says in the PIL filed through advocate Fauzia Shakil.
The PIL prays for declaration that the amendment to Section 35 and 36, be declared unconstitutional.
*Amendment renders principle of natural justice otiose
"Condemning a person unheard on a mere belief of the Government is unreasonable, unjust, unfair, excessive, disproportionate and violates due process. A person who is designated a terrorist, even if he is denotified subsequently faces a lifelong stigma and this tarnishes his reputation for life...Additionally, S.35 does not mention when a person can be designated as terrorist -- whether on a mere registration of an FIR or upon conviction in a terrorism related case. A person is never informed of the grounds of his notification so the remedy of challenging his notification S.36, provided for in the Act, is rendered practically otiose," it says.
It submits that a challenge to notification as terrorist lies before the same government which notifies an individual as terrorist.
The petitioner further states that the amendment creates no new offence and a bare perusal of the amendment would reveal that there is no criminal consequence that follows a person's designation as a terrorist.
Terming the amendment unnecessary, the PIL stresses that since the parent Act had sufficient provisions to deal with individuals associated with Terrorist organization, the present amendment appears to be unnecessary and unwarranted and targets individuals who are not members of any terrorist organization and who the Central Government believes is involved in terrorism and can be subject to wanton abuse.
"The Amendment provides no safeguards to a person notified as a terrorist. Challenging the notification is absence of requirement to furnish grounds and oral hearing makes the process practically inefficacious. The declaration of an association as unlawful under chapter II requires the notification to specify the ground on which notification is issued. S.3(3) of UAPA provides that for the notification to be effective, the same has to be confirmed by the Tribunal. Thereafter, u/s 4 the Tribunal has to follow a procedure and is required to decide after notice to the association to show cause. The inquiry and judicial determination process by the tribunal is provided u/s 5. Further, S.6 provides that the notification remains effective for a period of 5 years. However, the process for declaration of an individual has no such safeguard. There is no judicial adjudication- before a person is declared a terrorist. In fact, the power to declare a person as a terrorist gives unbridled power to the executive, without any statutory safeguards. And the fact that the amendment does not provide any consequence following a person's notification as a terrorist; it is unclear what object the amendment seeks to achieve".
*Chilling effects on free speech
Referring to the remarks of the Home Minister while introducing the Bill in the Lok Sabha, the PIL says, it displays the chilling effects of the amendment on the freedom of speech.
"...And then there are those who attempt to plant terrorist literature and terrorist theory in the minds of the young. Guns do not give rise to terrorists. The roots of terrorism is the propaganda that is done to spread it, the frenzy that is spread. In response to Supriya Sule (Member of Parliament), he further remarked:-"those who work for Urban Maoists will not be spared," quotes the PIL from the remarks from the Lok Sabha.
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