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Former government officials dispute provisions of UAPA in the Supreme Court

Why is it in the news?


According to Live Law, former civil servants challenged the terms of the anti-terror law, namely the Unlawful Activities (Prevention) Act, by filing a petition in the Supreme Court on Wednesday. Former IAS officers namely Baldev Bhushan Mahajan, Harsh Mander, Amitabh Pande, Kamal Kant Jaiswal, Pradeep Kumar Deb, Wajahat Habibullah, M G Devasahayam, Hindal Hyder Tyabji, and former IPS officers Ish Kumar and Julio Francis Ribeiro are the petitioners. The list also includes senior advocate Chander Uday Singh.


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The recent Tripura pogrom and charging persons with UAPA drew the notice of the Supreme Court. The Supreme Court, on Wednesday, granted protection from arrest to three accused. They were all charged under the Unlawful Activities (Prevention) Act for posting "Tripura is burning." The SC sought a more restrictive definition of "unlawful activities" under the act to curb its rampant misuse.


Furthermore, yesterday night the family of Atiq Ur Rehman, a UAPA accused, moved in a Habeas Corpus plea amidst his deteriorated health conditions. They claim that the charges against Rehman are frivolous.


What is the Petition?


Definition of terror: The petition brought to light the ambiguity about the absence of a definition of terror while using the term to define terrorist acts making the situation more unjust and leaving policy gaps wherein blatant use of the law may prevail. The terms namely acts of terrorism, terrorist, and terrorism are defined by the phrase- with intent to strike terror or likely to strike terror in the people.


Strict bail requirements: The petition questions the legitimacy of the 2008 amendment's Proviso to Section 43D (5 of the Act), which states that an offence is non-bailable if the court believes the allegations seem prima facie genuine.


The petitioners contend that the Proviso is arbitrary and not founded on any reasoning derived from the Act. It also violates Articles 14, 19, and 21 of the Constitution because it is supposedly not enacted for preventative detention.


The prima facie accuracy of any untested and unsubstantiated claims is a misfit to deny the rights guaranteed by Article 21. The abysmally low percentages of successful prosecutions are also symptomatic of the fact that this provision is arbitrarily used more to stifle dissent than to achieve the Act's true goals.


According to the petition, the absence of bail for a person suspected of terrorist charges, along with a lack of provision of materials for which punishment is sought, results in unconstrained powers for the government and allows the government to utilize its powers under the UAPA arbitrarily.


According to the petition, the mere charge of involvement in terrorism is sufficient to invoke Section 43D(5), which results in the rejection of the individual's right to bail.


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No protection for Unlawful Activity: The petition claims that, although the Act includes specific measures to safeguard the rights of "unlawful associations," no such protections are available for anyone accused of engaging in "unlawful activities," as defined in Section 2. (o). It is argued that there must be a comparable safeguard for people accused of engaging in the same type of illegal behaviour as an Unlawful Association. It is argued that the concept of parity requires that a person suspected of engaging in illegal behaviour be put on the same footing with an Unlawful Association.


Rate of conviction: The petition relies on the Ministry of Home Affairs (MHA) response in the Lok Sabha in March 2020 to determine that the five-year average conviction rate (2015-2019) is 2.19 per cent. According to the petition, this number alone implies that prosecution under the UAPA is either launched in "poor faith" or the quality of the evidence is insufficient.


Similar petition: Two attorneys and a journalist have challenged the definition of “unlawful action’ and the onerous bail requirements under UAPA, meanwhile seeking the dismissal of FIRs in which they had been accused under UAPA.


In the same petition, the Supreme Court ordered that "no coercive steps" be taken against two lawyers who were part of a fact-finding team that visited Tripura to investigate communal violence that erupted in the state in October, as well as journalist Shyam Meera Singh, who posted about the violence on social media.


What does the Supreme Court of India say?


On Wednesday, the Supreme Court ordered a response from the Union government asking it to respond to a petition brought by a group of retired civil servants questioning the legitimacy of various provisions of the anti-terror Unlawful Activities (Prevention) Act of 1967. The matter was given notice to the Union government by a panel of Chief Justice N V Ramana, Justices D Y Chandrachud, and Surya Kant, who further directed that it be filed alongside another similar pending suit.


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