By Simran Kaur
India’s constitutional mandate on its cherished promise of free speech has withstood several upheavals of time. The jurisprudence spanned over seven decades has been interpreted in the light of the principles of a democratic political society. The underlying basis of this entails exercising the fundamental right to free speech as a citizen, without fear, by circumscribing the extent to which the State can sanction and perpetrate control over it.
The roots of public safety acts like the Unlawful Activities (Prevention) Act, 1967 [“UAPA” or “the Act”] traces its origin to the colonial era when the British Government sought to arm itself with laws clandestinely clothed with the need of retaining the sovereign function of law and order, yet brutally repressing voices in the country, yearning to cement itself as a thought in the mainstream. Through this year’s amendment to the UAPA, India’s major internal security law retrogrades into those very nuances and harsh narratives. It certainly deprives people of their fundamental right to free speech and dignity by conferring power on the Government to label an individual as a terrorist on mere suspicion, given the lack of procedural safeguards in the Law . The basis of this legislation is that the Government can declare any organization to be involved in unlawful and terrorist related activities by incorporating it into the Schedule of the Act. The immediate redress provided to the said organization is a chance to present its case of proving its innocence before a review committee constituted by the Government itself. However, the 2019 amendment to the UAPA has blatantly ignored the principles of natural justice by denying any individual who is labeled as a terrorist, the right to appear before the Tribunal constituted for adjudication of claims by providing proof by an association/organization in order to challenge the decision of the government . The fate of an individual however now lies entirely in the hands of the Government which has been given unabated power to function on baseless suspicion only to be accentuated by an inherent procedural bias running through the amendment.
Without affording a procedural safeguard to an individual, the change in law acts a source of palpable social discrimination being meted out to citizens who attempt to revive all those elements of social conscience or perhaps social awakening. These activities are conveniently labeled as to the public safety by the state, which is essentially calling anyone with an anti-government rhetoric a terrorist .
Article 21 of the Indian Constitution states that no person shall be deprived of life and personal liberty except by procedure established by law . The criminal justice system in India inordinately suffers from the vice of unjust tardiness and is highly subject to arbitrary interference by the State in trials pertaining to internal security laws . The amendment systematically goes against the norms of criminal jurisprudence by firstly, denying the opportunity of being heard and secondly, by pinning the entire burden of proof on the person accused of being a terrorist by virtually whittling down any benefit of doubt. Thirdly, the amendment does not lay down a specified amount of time in which the case of an individual being labeled as a terrorist is to be tried. This creates a class of people who are put up in prisons without fair trial for an indefinite period of time.
It strikes at the settled position of law which stretches the paradigm of free speech to propagation of thought and opinion. In consonance with that, the scope of restrictions in Article 19(2) which are imposed were narrowly interpreted. Meaning thereby that criticism of the government cannot be read down into terms and situations like affecting national interests or security loosely. It carries the effect of an unjust clamp down on independent thought. Fundamental rights cannot be put to ransom by intolerant people who seek to impinge it . It is not the expansive dimensions of terrorism as is defined in the Act that is problematic but the overlap between criminalizing unlawful activities, terrorism as well as strong elements of sedition penetrating within which is the very serious concern. It is in this regard that the Government has been conferred with nothing less than an unfettered power to treat and label any act of an individual by any means within the ambit of terrorism.
The Act holds the potential to punish even those peaceful acts and protests which might or might not have a link with public order. In the backdrop of multiple internet shutdowns in several states in recent times, activists being put in jail without trial for peaceful protests and malicious sedition cases being slapped on the faces of citizens for questioning the actions of government, the haziness around the application of the law being infused into aggrandizing fear, as being antithetical to free speech becomes sufficiently clear. While UAPA seeks to curb the organizational basis and roots of organizations which it labels and brings within its ambit, labeling an individual as a terrorist is clouded with ambiguities, manifest arbitrariness and creates a large field for the State to vitiate the dignity of an individual by clipping off basic human rights.
The essential facet of the working of an internal security law like UAPA is that post decisional hearing is a norm when a statutorily established Tribunal clarifies the position of the Government on the status of an organization. The aftermath of the Amendment ruptures this modus operandi by twisting the golden rule of criminal law, “innocent until proven guilty beyond reasonable doubt”.
The Amendment operates on an ambiguity of a host of mixed up essentials of sedition, unlawful activity and the degree of punishment along with. While it also falls foul of the rational nexus between the object sought to be achieved and clinching purpose behind the Law. It creates an irrevocable dent in the equilibrium attained by balancing sovereign function of security and an atmosphere conducive to enjoy free speech. No sooner than the Amendment made its way through the Parliament which passed it with brute majority, it was challenged before the Supreme Court citing unequivocal violation of Articles 14, 19 and 21 . To substantiate, it is a multi-pronged attack on the golden triangle of fundamental rights. A law cannot stem from the need to contain political dissent and cannot be tainted by such considerations. The purpose it seeks to achieve should be based on the necessity and pressing need rather than creating an imbalance between the working of the pillars of democracy and assuming absolute power by the Government in derogation to fundamental rights.
The Author is currently in her 4th year, pursuing her law degree from the University Institute of Legal Studies, Punjab University, Chandigarh.
 Unlawful Activities (Prevention) Amendment Act, 2019, No.28, Acts of Parliament, 2019 (India).
 Section 4, Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India).
 Shreya Singhal v. Union of India, SCR 2015 SC 963 (India).
 Maneka Gandhi v. Union of India, AIR 1978 SC 597 (India).
 S. Rangarajan Etc v. P. Jagjivan Ram, AIR 1989 SC 204 (India).
 Sandeep Pandey v. Union of India, Writ Petition No. 5323 of 2016.
 Japnam Bindra, PIL filed in SC against Unlawful Activities (Prevention) Amendment Act, Live Mint, (Sept. 29, 2019, 1:00 pm), https://www.livemint.com/news/india/pil-filed-in-sc-against-unlawful-activities-prevention-amendment-act-2019-1566043786355.html.