The aforementioned question relates to the 2019 amendments made to the Unlawful Activities

(Prevention) Act, 1967 (referred to as UAPA henceforth). The difference being, that in UAPA,
amendment of section 35 states that only the Central government is empowered to declare a
natural person as a terrorist, and not the state governments as stated in the question.
UAPA is meant to outlaw and then punish any kind of unlawful and terrorist activities, which
poses a threat to the integrity and sovereignty of India. It also provides wide-ranging power to
the Central government to prescribe persons as terrorist organizations and prescribes penal
punishments for taking part in such activities.

In 2019, the Parliament carried out certain amendments to the Act (‘Amendment’) and the same
was notified on 8 August. The most significant change brought about by the Amendment was
that it altered Section 35 and gave the Central Government the power to notify an individual as a
‘terrorist’ under Schedule IV of the Act. Prior to the Amendment, only organizations could have
been designated this way and individuals were not covered.
Now, with this amendment, the central government may designate an organization or a private
person as a terrorist organization if it: (i) commits or participates in acts of terrorism, (ii)
prepares for terrorism, (iii) promotes terrorism, or (iv) is otherwise involved in terrorism. The
amendment additionally empowers the government to designate individuals as terrorists on the
same grounds.
The Amendment violates Article 14 as much as it is manifestly arbitrary and gives unbridled
powers to the Centre. It is a blanket power with no specified guidelines. Though terrorism has
not been defined under the Act, Section 15 of the Act defines ‘terrorist act’ and includes an act
that is ‘likely to threaten’ or ‘likely to strike terror in people’, gives unbridled power to the
government to brand any ordinary citizen, including activists, without these acts being actually
committed. There is no requirement of giving reasons. Further, a bare reading of Section 35(3) of
the Act, which has also been amended, will make it evident that the provision suffers from the
vice of vagueness. There is no mention of when an individual is deemed to have ‘committed’,
‘prepares’, ‘promotes’ or ‘otherwise involved in terrorism’
Designating individuals as ‘terrorists will channel the full force of the Act on one person. Just as
was the case with organizations pre-amendments, the government will not even need to believe
that people have participated in a “terrorist act” to designate them terrorists. In a circular logic
typical of the Act, an individual can be deemed to be “involved in terrorism” if the government
believes she is preparing for, encouraging or “otherwise involved in terrorism.” This gives the
government full discretion to designate an individual howsoever tenuous an “involvement” in
terrorism as it desires, without needing to disclose reasons. As has been the case with
organizations designated as terrorist, an individual’s only recourse will be to appeal to the very
body that imposed the ban; and then, to apply to a review committee which has no time-limit for
deciding, and does not need to reveal its reasoning.
The central government already has wide-ranging powers to attach assets related to any person
“suspected to be engaged in terrorism”, prevent their entry into India, and prohibit funds or
services being made available to them. The need for additional powers by designating
individuals as terrorists is thus hard to discern. In fact, once an organization is designated
“terrorist,” the UAPA already allows a wide range of people to be prosecuted, including non-
members—supporting the banned organization in any way, or even helping organize meetings
where the organization’s members are speakers, is criminalized.
The Supreme Court of India, in Shreya Singhal v. Union of India, had identified ‘vagueness’ as
one of the grounds for striking down Section 66A in India’s Information Technology Act. The
law imposed an unreasonable restraint on online speech. Likewise, the proposed amendment can
cause a chilling effect on the freedom of speech and expression which is enshrined as a
fundamental right in Article 19 (1) (a) of India’s Constitution. The Supreme Court had also
endorsed the advocacy-incitement distinction of the US Supreme Court in Brandenburg v. Ohio
and held that Article 19 (1) (a) would protect free speech to the extent that there is mere
advocacy of opinion and no incitement of violence.
In K.S. Puttuswamy v. Union of India, the Supreme Court recently recognized the right to
privacy as an integral part of Article 21 of the Constitution which guarantees a right to life and
personal liberty. The apex court held that the right to be let alone is a reflection of the inviolable
nature of the human personality. Profiling by the executive is thus a violation of Article 21 as it
infringes upon the personal autonomy of an individual. Furthermore, there are established
judicial precedents in India which denounce the practice of guilt by association on the basis of
mere membership of banned organizations or denial of bail for possession of potentially
seditious literature.
Countering terrorism is a noble goal but the legislature has clearly erred in pursuing it at the cost
of eroding human rights. The proposed amendment violates the mandate of the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights. The
Indian Supreme Court has often taken resort to these international instruments to reinvigorate the
fundamental rights chapter in the Constitution. In 2018, the judiciary played an admirable
counter-majoritarian role to read down a colonial-era provision in the Indian Penal Code which
criminalized homosexual acts.
Unlike India and some other jurisdictions, English law does not permit judicial review of
primary legislation (laws passed by Parliament), even where primary legislation is contrary to
EU law or the European Convention on Human Rights. A person wronged by an Act of
Parliament therefore cannot apply for judicial review unless this is the case, but may still argue
that a body did not follow the Act. Therefore, this will be in severe contradiction to the Human
Rights Act of 1998.
Article 2 of the human rights act This means that nobody, including the Government, can try to
end your life. It also means the Government should take appropriate measures to safeguard life
by making laws to protect you and, in some circumstances, by taking steps to protect you if your
life is at risk. It guarantees that everyone’s right to life shall be protected by the law.
Under article 10, everyone has the right to free speech. This act will further end up reducing this
right to a very low level, hence it can be argued that this act is violative of the right to free
speech.
Conclusion
“Fundamental Rights” is a term which is self-explanatory in itself. There are some rights which
are so unalienable and fundamental to human existence, that they must be given to an individual
so that they can live their life with the bare minimum human dignity that can be expected in a
parliamentary democracy like India. These rights are not without exception, given, that these
exceptions are reasonable. The UAPA curtails the said Fundamental rights without giving out
proper justification, reason or process to curtail these rights (Article 19(1)(1), article 14 and
article 21), which are necessary for exercise of citizen rights in India, hence, this act does not
completely fulfil the requirement set out in the Maneka Gandhi case. Whereas, UK believes in
the case of Parliamentary supremacy, and does not consider repealing a law, even when it
violates European conventions, hence the only recourse available in the UK is a legislative
recourse, which is by introduction of a separate bill by the parliament of UK. Otherwise, the
courts do not have the power to repeal any law, or to declare them as unconstitutional.