The petitioner, defining himself to be a public-spirited person, says UAPA 2019 seeks to substantially modify Chapter VI of the Unlawful Activities (Prevention) Act, 1967 and Section 35 and 36. “The new Section 35 of the UAPA Act, 1967 empowers the Central Government to categorise any individual as “terrorist” and add name of such a person in Schedule 4 of the Act. It is submitted that conferring of such a discretionary, unfettered and unbound powers upon the central government is antithesis to the Article 14 of the Constitution of India,” says the petition filed through Advocate Pawan Reley. The much-debated recent amendment allows for notification of individuals as “terrorists” while under UAPA,1967, only organisations could be so notified.

UAPA 2019 strikes at Right to Reputation
Submitting that UAPA 2019 strikes at Fundamental Rights of an individual at various levels, the petitioner says it also mars the right to reputation of a person.
“…Right to Reputation is an intrinsic part of fundamental right to life with dignity under Article 21 of the Constitution of India and terming/tagging an individual as “terrorist” even before commencement of trial or any application of judicial mind over it, does not amount to following of ‘procedure established by law’ and is, thus, violative of right to reputation of such an individual who is being categorised as terrorist and being added in Schedule 4 of the UAPA Act, 1967.”

The petitioner has cited the case of ‘Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni & Ors’, while stressing on right to reputation as an integral part of right to life, wherein the Supreme Court had held that, “It is thus amply clear that one is entitled to have and preserve, one’s reputation and one also has a right to protect it. In case any authority, in discharge of its duties fastened upon it under the law, traverses into the realm of personal reputation adversely affecting him, must provide a chance to him to have his say in the matter.”
The petition further states that Section 35 of the impugned law is also violative of international conventions ratified and implemented by India as the International Covenant on Civil and Political Rights (1965) recognizes right of reputation of others and right to hold opinions without interference.

Curtails Right to Dissent
Media reports suggest that the petition further states that, “The UAPA, 2019 does not afford an opportunity to an individual, being categorised as terrorist, to present his/her case and let such individuals to live on the whim and caprice of the society thereinafter. The amended Section 35 of the UAPA, 1967 directly and adversely affects the fundamental right to free speech and expression as enshrined under Article 19 (1) (a) of the Constitution of India. It is relevant to note here that Right of dissent is a part and parcel of fundamental right to free speech and expression and therefore, cannot be abridged in any circumstances except for mentioned in Article 19 (2)”.

“The UAPA, 2019 empowers the ruling government, under the garb of curbing terrorism, to impose indirect restriction on right of dissent which is detrimental for our developing democratic society,” it says.

Arbitrary powers conferred on State; manifest arbitrariness
The petitioner also raises the issue “whether the Unlawful Activities (Prevention) Amendment Act, 2019 suffers from the vice of manifest arbitrariness?”
“prior to passing of the impugned law, the Unlawful Activities (Prevention) Act, 1967 vide its Section 35 authorised only categorising of organisations as terrorist organisations but after coming into force of the impugned law, the same has been extended to individuals as well… it is necessary to draw a clear line of distinction between unilateral categorisation of an organisation as terrorist organisation and unilateral categorisation of an individual as a terrorist because the latter carries with itself far more prolonged consequences and repercussions for a person’s liberty and to live freely with dignity”.
The petition also further argues that the procedure for notification of an individual as a ‘terrorist’ is flawed and devoid of any impartial procedure, as the same lacks any judicial member or retired judicial member, especially in the instant case where fundamental rights of an individual are at stake, the petitioner submits.

The petition also argues that Section 35 of UAPA 2019 “does not specify detailed grounds or reasons based on which an individual can be termed as terrorist and, therefore, conferring of such an arbitrary and unfettered power without any limits or bounds amount to violation of Article 14 of the Constitution of India”.

“…thread of reasonableness runs through the entire Part III of the Constitution (Fundamental Rights) and not even an iota of the provisions contained in Section 35 of the impugned law be termed as fair and reasonable,” it says while citing Supreme Court’s observation in the case of ‘Shayara Bano & Ors. v. Union of India & Ors’ wherein the court dealt with the scope of challenging validity of an enactment on grounds of being manifestly arbitrary and observed, “Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well Under Article 14,” says the petition.
 

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Interview with Rizwan Qaiser
Interviewed by Nilanjan Mukhopadhyay Produced by Newsclick Team,

The recently concluded Parliament session was momentous. Several Bills greatly advancing the agenda of BJP and the Sangh Parivar were passed, including the Unlawful Activities (Prevention) Act. In this episode of Past, Present, and the Future, Nilanjan Mukhopadhyay speaks to historian Rizwan Qaiser about the similarities and differences between India now and a hundred years ago, and how things have changed from the Rowlatt Act of then to the amended UAPA now.

Courtesy: https://www.newsclick.in/

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“ An Individual Psychology is birth place of terrorism “ – is a demonic statement which missed the head lines of media. What the Hon’ble Home Minister tries to project his people as (i) By birth, people could be criminals ; (ii). An terrorist lives in cocoons here with no interaction with society and develops his own mentality ; (iii). As the terrorist crime is in brain, we will have to create a feeling of terrible threat in his brain which is the only solution; (iv) Unless you attack brains of all civilians of society, the country cannot be progressed.

This unfolds the “rightist style” of governance. It wants to take every brain into control. The institutional and structural reforms are only some polish jargon for them and there is no conviction to think in that direction for these forces – is the clear out and out perspective the Hon’ble Home minister was presenting in the house. On the same grounds, where does the crime of child abuse come from ? where does the crime of attacks on Dalits come from ? Where does the crime of mob lynching come from ? If Hon’ble Home Minster chiefly thinks of assigning pristine importance to a “cultural revolution” , that will deserve a grand welcome ! However, the crudeness of his statement only circles around an isolated individual “brain” – for which the presumed solutions would be “ brain wash “ or “ existential threat “ !
Let us look at this UAPA Bill amendment. The unforgettable and unpardonable party to the origination of the original Bill is none other than Congress Party itself. It passed this draconian law and brought several “ Brains” into a torturous state. Be it Prof. Saibaba ( Delhi University Profesor voiced against “green Hunt “ and assault on tribal rights)  or Thirumurugan Gandhi ( activist in Anti-Sterlite movement in Tamilnadu) or Hem Mishra ( student of JNU ) or any so-called “Urban Maoist” who use their “brains” and not any weapons to fight out a cause, were framed charges under this law.

While Amit Shah tries to substantiate that the proposed law is as per laws of various foreign countries like US, China etc., Amnesty international bluntly brushes of this claims in its statement  – “It is ironic that the government is relying on international law for passing this amendment when the entire law is ignorant of international discourse on human rights. Time and again, UAPA, India’s principal counter-terrorism law has been abused by recurring governments to target human rights defenders working with the poor and marginalized communities and those who criticise government inactions or excesses….. International laws and conventions must not be cherry-picked by the government to suit their objectives.

Terrorism must not be countered at the expense of human rights. ”

While the Home Minister tries to portray that he is following some international standards on countering terrorism, it is actually another white wash of the perspective he is putting forth on behalf of his “rightist mentors and colleagues”.

There are two critical provisions which arms Central Government to wield its baton over any crime that is perceived as “terrorism”
 

1. NIA has been given full authority to brand anyone as “Terrorist” without approaching court and seize their properties. The rank of the officer who recommends this is not less than Circle Inspector ( Section 25)
2. Any individual or organisation ( Section 35) is “deemed” as “terrorist” if it “promotes” or “prepares” for terrorism with no defined terms of “prepare” and “promote”

NIA Circle Inspector who could be around 30 years of age and with some basic qualifications is authorised to recommend to DGP to reckon some one as Terrorist as against ACP, earlier designated. The funny explanation given by Home Minister was that there is a shortage of staff at NIA. We fail to understand why cant Govt. create more jobs like this instead of dragging down the important responsibilities ?! The point is not that ACP range officer will have a different thinking. The Hon’le Home minister does not want to play the game straight. The apparatus for state fascist imposition on elimination of thoughts in brains, which essentially, the Minister was targeting at, is being expanded and the “looseness” he wants to create in the system to deepen scare in the minds of people is the real problem.

As far as the definitions of “ prepare” and “promote” are concerned, the Minister left them deliberately undefined opening to any sort of interpretation. There have been several cases possessing mere literature of Maoists was interpreted as Maoist and were persecuted. A person who watches pornography cannot be labelled as “ rapist” but a person who possesses Maoist literature ca be labelled as “Maoist”. Essentially, the Minister is not just targeting any other individual or organisation limited sympathisers or researchers of any terrorist organisation, he empowers his Government to act against any party in the name of “preparation and promotion of terrorism” as terrorism itself is an undefined term. And, this leaves great scope of misuse of power on the bill. This is decided by someone who is sitting in Delhi and labelling people across all states.

Amit shah taking cognisance of this says “ completely assures no misuse of law” to the House. This is a very wickedly naïve statement as everyone knows IPC itself is being abused and several thousands of people were being prosecuted under false charges. It is pertinent to recollect that Amit Shah was prime accused in Sohrabuddin encounter case. Shrbauddin was a criminal ivolved in extortions  having close realations  Islamic preaching terrorist organisations and Dawood Ibrahim too. It has been alleged that Sohrabuddin was as aide of Amit Shah. Sohrabuddin’s wife, being prime witness, who was an unarmed lady, was also killed in a planned encounter. CBI named Amit Shah as prime accused in the case. The judge dealing with the case viz. Mr. Loya was offered bribe to protect Amit Shah and was suspiciously fund dead, after his denial of the bribe. As we see through the facts brought out by various journalists and some socially responsible media, Amit Shah deserves to be a prime suspect by CBI.However, this entire episode may not convict Amit Shah.  But the point is, a person who assures the bill poses as if he has sterling character who extends assurances to the people of India.

Ambedkar had always worried about constitutional morality rather than implementing constitution itself. If ruling class does not possess respect to the Constitutional morality, there is no point in putting constitutional provisions to discussion. The Government has not believed in federalism and took over the powers into its hands and Government executive position is being turned into judiciary role. The Government has started functioning as an “RSS Camp” where they aim to change “psychology of individuals”. Unfortunately, we can observe that the opposition has paid lip service to protest the demonic nature of amendment as the biggest opposition was to come from the originator of the main act itself. Other parties like BSP, CPI, CPM etc could not put up a fight or could not take up any concrete exposing plan for the potential “terrorist” suspects, as they are not going to be  part of their vote banks and it is a long term impacting action on “brains” .There are cases like Prof. Saibaba which are appalling not just to India alone but to the entire world. If one looks through the judgement on him and other accused, the judgement has decided that they are Maoists just because they hold a news paper in their hands, which is interpreted as a general signal Maoists use to meet up at a particular point. That classifies whoever holds a particular news paper in a bus stand or railways station as “Maoist”. Thats how the judgements are benchmarked in India when it comes to UAPA. In such a back drop, we get assurance from Amit Shah that the law will not be misused.

Amit Shah , who is named as prime accused by CBI Sohrabudding encounter case, is assuring this entire nation that the law will not be “misused”. What does that really mean ?  Sohrabuddin’s case is a classic case of misutilisation of Government apparatus while Sohrabuddin was well-known to be the aide of Amit Shah. The apparatus functioning becomes seriously questionable when the judge Mr. Loya passes away in a very suspicious manner and the interrogation of the same is still not known to public. Amit shah who neither cares to clear these disconnects nor releases a white paper on the developments from Government. We need to question ourselves – is there any law which was not put to misuse till date ? How UAPA, which is the most demonic law in India so far, cannot be misused ? Secondly , the Home Minister also hints that he is not going to put any structural measure in place to avoid misuse but ‘his own word’. This sends a signal that people must be dependent on countenance of someone, on 24X7 basis, to rescue themselves off from  demonic imposition. This tantamounts that – the accused like Bhima-Koregaon movement activists need to plea before the Home Minister to not to misuse UAPA law on them and that is the level of scoffing what the Hon’ble Home Minister seems to be expecting.

The burden of proof in any other case is with police to prove someone culprit but in UAPA cases the burden of proof always lies with the accused, who is a victim in such cases, to prov his innocence. The evidence what police produce in front of the courts have been seen from previous cases, as tampered or fabricated. In case of Prof. Saibaba, the he was first arrested on “ house theft in Maharashtra “ ( and everyone knows how a 90% physically challenged educationalist can travel to a remote place in Maharashtra, that too, for the prupose of robbing a house ) and then was brought into UAPA charges ( Till, now the court did not ask a single question on what happened to the theft case )
The conviction rate in UAPA is one of the lowest, though, compared to any other law. Except direct cases like Khobad Gandhy ( a Central Committee member of Maoist) most of the accuse in these cases are from Urban areas. The UAPA is nto really meant to curb terrorism. It is meant to threat “ existence of certain thoughts.” And those thoughts must have been acknowledged by the majoritatiranist state or otherwise, they fall under UAPA. That’s the demonic shape of this amendment !

P Victor Vijay Kumar is An investment banker and CFO of infra group having interests in social writings. He may be reached at pvvkumar@yahoo.co.uk or facebook id “ P V Vijay Kumar “)

Courtesy: Countercurrent

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