The Supreme Court on Tuesday declined to entertain a clutch of petitions challenging the constitutional validity of various provisions of the Unlawful Activities (Prevention) Act (UAPA), making it clear that the petitioners must first approach the jurisdictional high courts. The petitions question the balance between national security and individual rights.
A bench headed by Chief Justice of India (CJI) Sanjiv Khanna observed that high courts are competent to decide these matters in the first instance and emphasised that the apex court should not serve as the first forum of adjudication.
“We are very clear that we will not become the first court of adjudication. Let the petitioners go to respective high courts first,” the bench, also comprising justices Sanjay Kumar and KV Viswanathan, stated. It added that the high courts are already seized of similar petitions and well-equipped to examine the validity of the law.
The court granted liberty to the petitioners to withdraw their petitions from the Supreme Court and pursue their challenges in the high courts. “We make it clear that the high courts will deal with the petitions pending before them,” the bench directed in its order.
Solicitor general Tushar Mehta, appearing on behalf of the Union government, supported the court’s view, pointing out that multiple petitions are already pending before high courts, including those in Delhi, Gauhati, Kerala, and Tripura. “It is always good to have the opinion of a high court before the matter reaches the highest court of the land,” Mehta said.
The bench concurred, instructing lawyers representing various petitioners to pursue their cases in the respective high courts. Senior advocate Arvind Datar appeared for one of the petitioners during the hearing.
The petitions primarily challenge the 2019 amendments to the UAPA, which introduced significant changes, particularly to Section 35 of the Act. The amendment empowers the Central Government to designate individuals as “terrorists” under Schedule IV of the Act — a power previously restricted to organizations.
The lead petition by Sajal Awasthi, filed in 2019, argues that the amendments undermine due process. It asserts that Sections 35 and 36 of the UAPA fail to specify clear criteria or procedures for arrest, granting the government unchecked powers to label individuals as terrorists based on mere suspicion or belief. In September 2019, the top court admitted Awasthi’s petition, issuing a notice to the Union government. On Tuesday, since Awasthi’s lawyer was indisposed, the bench asked him to come back with appropriate instructions on the next date regarding the withdrawal of the petition.
Another petition filed by the Association for Protection of Civil Rights challenges the amendment as violative of fundamental rights, including equality, freedom of speech and life. It contends that allowing the government to unilaterally designate individuals as terrorists without judicial scrutiny violates natural justice principles and results in arbitrary actions.
A third petition, filed by retired civil servant Amitabha Pande in 2021, highlights the lack of procedural safeguards for individuals accused under the UAPA. The petition points out disparities in the treatment of individuals listed as terrorists in Schedule IV versus those who are not formally labeled but face trial under the Act. It also raises concerns about restrictions on anticipatory bail and seeks compensation for individuals wrongly incarcerated under the UAPA who are later acquitted.