AN ANALYSIS ON THE CONSTITUTIONALITY OF AMENDMENT TO UNLAWFUL ACTIVITIES PREVENTION ACT

Updated: Jul 22, 2020

By Ms. Madhumitha.N


1.INTRODUCTION:

The Citizenship Amendment Act, 2019 had been enacted with Presidential assent in the last year. This Act was not very welcomed by the citizens of India due to the nature of the amendments which were made by it. Anti CAA protests took place in various parts of the country objecting the Amendment. Among such protestors was Safoora Zargar, the student of Jamia Millia Islamia was arrested on April 10, 2020 under the Unlawful Activities (Prevention) Act, 1967(UAPA) and was in custody until she was granted bail on June 24, 2020. Her arrest became viral over the internet since she was at the end of her first trimester during her arrest. This article would discuss the constitutionality of the amended UAPA and whether should it be struck down or essential for the sovereignty and integrity of our nation.


2.AMENDMENT TO UAPA:

The UAPA was amended on August 8, 2019 which introduced a set of changes to the already existing draconian law. The most important change made to this Act was that it empowered the Government to designate individuals as terrorists by mere belief without granting an opportunity of being heard challenging such designation[i]. Before this amendment, only organizations involved in unlawful activities which endanger the sovereignty and integrity of the nation were designated to be terrorist organizations. Therefore, this power granted to the Government to designate a person as ‘terrorist’ without any proper proof and evidence and based on mere belief is purely unconstitutional and violating the fundamental rights of such individual.

3.VIOLATION OF PRINCIPLES OF NATURAL JUSTICE:

There are two principles of natural justice: (i) nemo debet esse judex inpropria causa which means no-one is judge in his own cause and (ii) audi alteram partem which means listen to the other side. These two principles though not written in our Constitution have been recognized and implied by our Hon’ble Supreme Court and High Courts in various decisions. The said amendment to UAPA violates the principle of audi alteram partem directly since the person designated to be a terrorist is not given reasonable opportunity to be heard.


4.VIOLATION OF INTERNATIONAL CONVENTIONS:

The International Covenant on Civil and Political Rights, 1966[ii] recognizes the principle of ‘innocence until proven guilty’ as a universal human right. The Indian Constitution and Criminal Laws also have adopted this principle stating that an accused should be trialed considering him to be innocent until proven guilty and the burden of proof lies on the prosecution. An accused is a person who is charged with a particular offence and to be adjudged by the Court of Law. Thus, such person is termed accused unless being convicted or acquitted be an appropriate Court. However, the amendment to UAPA states that any individual can be designated as ‘terrorist’ based on mere belief and no hard evidence that his/her activities endanger the sovereignty and integrity of India.


5.TRESPASSING THE INDIAN CONSTITUTION:

Article 14 states that every person has the right of equality before law and equal protection of law. Right to equality is also the known principle under the rule of law and has been incorporated by the Indian Constitution. Further, right to equality would also mean the right to be heard. The UAPA denies the opportunity to be heard before designating an individual as a terrorist violating Article 14.

Article 19 of the Constitution grants the freedom of speech and expression and the freedom to protest peacefully.Article 19(2) imposes reasonable restrictions upon such freedom. There are three concepts which are fundamental in understanding the reach of basic human rights. They are

(i) Discussion.

(ii) Advocacy.

(iii) Incitement.[iii]


Mere discussion or even advocacy of a particular cause howsoever unpopular is within the ambit of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.[iv]The term incitement means ‘the action of provoking unlawful behaviour or urging someone to behave unlawfully’. However, the Government of India had been using the power under the UAPA to designate individuals involved in peaceful anti-CAA protests as terrorists though their action does not constitute to be an incitement endangering the sovereignty, integrity and security of India. Thus, the Government had been abusing its power under the UAPA which violates the freedoms granted under Article 19.


Article 21 grants the right to life and personal liberty. Right to reputation is also considered to be one of the rights under it.[v] A good reputation is an element of personal security and is protected by the Constitution equally with the right to enjoyment of life, liberty and property.[vi] Designating an individual as a terrorist under Section 35 of the UAPA without proper investigation and proof and based on mere belief will amount to defamation and affect his/her right to reputation in the society. Right to life and personal liberty under Article 21 is one of the most important rights granted by the Constitution and Section 35 of UAPA violates this right enshrined under the Constitution and therefore needs to be struck down.


6.CONCLUSION:

The initiative of amending the UAPA to designate individuals as terrorists was made to prevent unlawful activities and prevent any territorial attack by individuals who might have entered into our nation with such a motive. However, the procedural aspect behind Section 35 and 36 of the UAPA is in direction violation of the Fundamental Rights of the Constitution. Article 13 of the Constitution states that any law found to be inconsistent with Part III (Fundamental Rights) of the Constitution shall be void.

Further, the amended UAPA states that an individual can challenge such designation not before but only after being designated to be a terrorist. The Indian Constitution is the supreme law of the land and therefore, this amendment should be struck down immediately to prevent the abuse this power by the Government.

[i]Section 35, Unlawful Activities (Prevention) Act, 1967, No. 37, Acts of Parliament, 1967 (India). [ii]International Covenant on Civil and Political Rights, 1966, Dec. 16, 1966, 999 U.N.T.S. 171. [iii]Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1. [iv]Ibid. [v]Subramanian Swamy v. Union of India, (2016) 7 S.C.C. 221. [vi] State of Bihar v. Lal Krishna Advani & Ors., (2003) 8 S.C.C. 361 (India).

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