Two constitutional courts grapple with UAPA challenges on the same day

NEW DELHI: Two constitutional courts, the Supreme Court and the Delhi high court, on Wednesday simultaneously dealt with key challenges to the Unlawful Activities (Prevention) Act (UAPA), underscoring the contentious legal landscape surrounding India’s primary anti-terror law.

Even as the Delhi high court took up petitions challenging the constitutional validity of various UAPA provisions, the Supreme Court continued hearing a case questioning the central government’s power to designate an organisation as a “terrorist outfit” without a prescribed procedure under the law.

A bench of justices Surya Kant and N Kotiswar Singh heard arguments in a petition filed by terror convict Saquib Abdul Hamid Nachan, challenging government notifications from February 2015 and June 2018 that declared the Islamic State (ISIS) and its affiliated manifestations as “terrorist organisations” under UAPA.

Amicus curiae and former Delhi high court judge Mukta Gupta contended that the lack of a procedure in UAPA for such designations infringes upon Article 21 of the Constitution, which guarantees the right to life and personal liberty.

“The procedure of declaring an organisation as terrorist should be done by following due process of law that is just, fair, and equitable,” Gupta argued. She pointed out that while UAPA contains a detailed process for designating an outfit as “unlawful”, which is adjudicated by a tribunal, no such mechanism exists for declaring an organisation a terrorist outfit -- a decision solely left to the central government’s belief.

She further highlighted that Nachan’s petition had originally challenged the notification on the ground that it violated his right to freedom of religion under Article 25. However, the broader issue, she said, was the fundamental rights of individuals and organisations affected by the designation.

The Supreme Court agreed to continue hearing the matter and posted it for March 19.

While the Supreme Court was engaged in this debate, the Delhi high court took up a separate case filed by the Foundation for Media Professionals (FMP), challenging the constitutional validity of multiple UAPA provisions, including Section 10, which criminalizes mere membership in an unlawful association.

The Union government, represented by additional solicitor general Chetan Sharma, opposed the petition’s maintainability, arguing that the Supreme Court had already upheld key provisions of UAPA. He cited the March 2023 ruling where a three-judge bench restored the doctrine of “guilt by association”, holding that mere membership in a banned organisation is sufficient to attract criminal liability.

However, senior advocate Arvind Datar, representing FMP, urged the court to issue notice on their plea, pointing to the Supreme Court’s order from a day earlier. In that ruling, a bench led by Chief Justice of India Sanjiv Khanna had directed all pending UAPA challenges to be heard by high courts first. “We are very clear that we will not become the first court of adjudication. Let the petitioners go to respective high courts first,” the top court had observed on Tuesday.

After hearing both sides, the high court bench of chief justice DK Upadhyay and justice Tushar Rao Gedela deferred the matter to February 11, when it will decide whether to issue notice on the petition.

The petition before the high court also challenges other UAPA provisions, including Section 43B (Governing arrest and seizure procedures), Section 43D (Imposing stringent bail conditions, allowing courts to deny bail unless the accusations are found prima facie false) and definitions of “unlawful association,” “unlawful activity,” and “disaffection”, which FMP claims to be overly broad and arbitrary. FMP has contended that these provisions are being used to target journalists and dissenters under the guise of national security.