Rohit Pradhan | 6th October 2019
Article 14 and UA(P) Amendment 2019
Art.14 of the Constitution guarantees Right to Equality to every citizen of India[1] which prohibits unreasonable discrimination between persons and arbitrariness.[2]Art. 14 prohibits discriminatory laws whether they are substantive or procedural.[3] Therefore, UA(P)A, 1967 has to be in coherence with Art. 14.
Primary Changes it brought
- Central Government can now designate individuals as terrorists, similar to the procedure in force for terrorist organizations, if the person commits or participates in acts of terrorism, cyber terrorism, prepares for terrorism, promotes terrorism or is otherwise involved in terrorism.
- Providing the National Investigation Agency power to investigate and seize property with mere permission from Director General of National Investigation Agency, vide the Unlawful Activities (Prevention) Amendment Act, 2019.
Choosing appropriate Test to check if it violates Article 14
In order to test if a Statute or Act is violative of Art.14 Courts use the test of Reasonable Classification[4]. The Supreme Court in Lachman Das v. the State of Punjab[5], expressed the opinion that over-emphasis on the Doctrine of Classification deprives the Art. of its glorious content. Supreme Court[6] later reiterated it saying that if the Act is arbitrary it will be violative to Art. 14.
In the case of E.P. Royappa v. State of Tamil Nadu,[7]the Court instead of relying on test of Reasonable Classification, opted for the test of Arbitrariness and held that, where an Act is arbitrary, it is implicit that it is unequal both according to political logic and Constitutional law and is therefore, violative of Art. 14.
Whether Central Government’s power to designate any individual as a terrorist is arbitrary?
The UA(P) Amendment Act, 2019 seeks to designate an individual as a terrorist, but does not define the word ‘terrorist’. What is even more troubling is the lack of clarity over what happens to an individual who is declared to be a terrorist. Even in the instance of UN, it designates an individual as a terrorist and puts various sanctions upon him/her[8] including ‘travel ban.’[9] The current Amendment does not state very clearly about the consequences after someone is enlisted in Schedule IV. Further, it has to be noted that one cannot be penalized for merely belonging to an unlawful organization[10] but the said Act penalizes an individual for merely being a member of a banned outfit. Just because they are connected to the crime syndicate, it doesn’t mean they can be arbitrarily designated as terrorist.
1. The Appeal Process
Central Government is the only entity that is empowered to notify or de-notify an individual as a terrorist.[11] Later, if the accused files an application,[12] the procedure for such application and the decision-making will be decided by the Central Government itself. Although, the Amendment gives the right to seek review within a month if the application gets rejected, the procedure for the review is not justifiable.
The only avenue for appeal is a three-member review committee[13] which is headed by a sitting or retired judge of a High Court and consists of two other members whose qualifications are not defined. Even though it is headed by a judicial member, there is no legal guarantee of a due process as all members of the committee are appointed by the Central Government. It is settled that, “if power conferred by statute on any authority of the state is ‘vagrant and unconfined’, and no standards or principles are laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause, because it would permit arbitrary exercise of power, which is the anti-thesis of equality before law.”[14]
2. Importance of a reasonable law
Thus, if a statute directs its provisions against one or several individuals and if no reasonable basis of classification appears prima facie or could be deduced from the surrounding circumstances and common knowledge, the Court will strike down the law as an instance of discrimination, as in the case of Ameerunnissa begum v. Mahboob begum[15]. In this case, the Court held that if the statute is directed towards one or several individuals without any reasonability in classification, then such laws will be struck down by the Court. In the present case, the Amendment in conflict is directed towards any individual.
3. Presumption of innocence until proven guilty
The present Statute labels an individual as a terrorist even though the government has neither the adjudicatory power[16] nor any reasonable basis of classification to come to a conclusion like this.[17] Without any adjudicatory power, the power of labelling any individual as a terrorist is void and liable to be struck down.[18] This discretion of government is against the ‘notion of the presumption of innocence until proven guilty’[19]. Since, labelling someone terrorist before trial clearly imposes a person with guilt, it is against the very notion which is the basis of criminal adjudication.
Whether NIA’s power to investigate and seize property with permission from Director General of NIA is arbitrary?
Earlier, NIA had to take permission from Director General of Police for investigation and seizure of properties under the UA(P)A Act.[20] Each state has a Director General of Police, which is the highest rank of a police body.[21] This body is constitutionally responsible for the “Public Order” in their respective state under Entry I and II of the State List of Schedule VII of the Constitution.[22] But after the Amendment of 2019, NIA is now taking permission for investigation and seizure of property from the Director-General of NIA. NIA has been given unlimited power of discretion and decision-making power. This gives them wide powers to investigate upon whomsoever they believe to be a terrorist.
1. Importance of guidance as to exercise of discretion
Madras High Court in the case of the State of Madras v. Sri Vanamamalai Mutt Nanguneri[23], held that the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute is arbitrary.[24] Absolute and uncontrolled power is anathema under Constitution order.[25] If an uncontrolled power is given to the Government to discriminate between persons or things similarly situated, then the discrimination is inherent in the statute itself.[26] In such a case the Court will strike down both the law as well as the executive action taken under such law.[27]
Similarly, in
the present case, there is no such principle laid down as to when and how
permission to investigate and seizure of a person or a property will be
conducted. The powers are uncontrolled, as earlier, State Police used to check
upon the NIA, but now, such checks have been obliterated. NIA has the absolute
power with no other body or authority to review its decisions.[28]
Also, NIA being an executive agency does not have adjudicatory powers[29]
and so, it uses its arbitrary rationale to designate a person as terrorist.
[1]Shayara Bano v. Union of India and Ors. LNIND 2017 SC 415
[2]Tarjinder Kumar Son of Late Shri Tikaya Ram and Ors. v. The State of Punjab and Anr., 2011 SCC OnLine P&H 232, See also, Air India v. NergeshMeerza and Ors., AIR 1981 SC 1829
[3]Virendra Krishna Mishra v. Union of India, (2015) 2 SCC 712
[4]The State Of West Bengal v. Anwar All Sarkarhabib 1952 AIR 75
[5]Lachhman Das on behalf of Firmtilak Ram Ram v. State of Punjab and others, 1963 AIR 222
[6]AjaiHasia v. Khalid Mujib, (1981) 1 SCC 722.
[7]E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3
[8] KATHARINA.KIENER-MANU, Counter-Terrorism Module 1 Key Issues: UN Designated Terrorist Groups, //www.unodc.org (last visited Aug 12, 2019).
[9]Masood Azhar, Hafiz Saeed, Lakhvi, Dawood Ibrahim declared terrorists under new anti-terror law – The Hindu, ,https://www.thehindu.com/news/national/masood-azhar-hafiz-saeed-dawood-ibrahim-declared-terrorists-under-new-anti-terror-law/article29330657.ece (last visited Sep 4, 2019).
[10]State of Kerala v. Raneef, AIR 2011 SC 340, ChhatradharMahato and Ors. v. The State of West Bengal, MANU/WB/2089/2019; Asim Shariff v. State, MANU/KA/5669/2019; Asim Shariff v. National Investigation Agency, Bengaluru, MANU/KA/6226/2018
[11] The Unlawful Activities (Prevention) Act, 1967, § 36
[12]Id. At (3)
[13]The Unlawful Activities (Prevention) Act, 1967, § 37.
[14]Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232.
[15] Ameerunnissa begum v. Mahboob begum, 1953 AIR 91; See also, Ramprasad narain sahi v. The state of Bihar, 1953 AIR 215
[16]Prabhakar v. Joint Director, Sericulture Department and Anr. LNIND 2015 SC 795. See also, Dharanvur v. State National Capital Terriroty of Delhi, NIND 2000 DEL 469; Rajesh WaliaSant Ram, v. State of Himachal Pradhesh and Ors, LNIND 2014 HP 3345; New Delhi General Mazdoor Union V. Government of Delhi and Others, (2000) 2 LLJ 1191
[17]RoopchandAdhlakha and Ors v. Delhi Development Authority and Ors., AIR 1989 SC 307, See also, A. Vijaya Sekaran v. The Secretary of Government, Home Dept. and Ors., LNIND 2019 MAD 6238.
[18]Id.
[19]State of Himachal Pradesh v. Mool Chand LNIND 2018 HP 1066
[20] The Unlawful Activities (Prevention) Act, 1967, § 25
[21]Police Ranks and Badges | Odisha Police, , https://odishapolice.gov.in/?q=node/199 (last visited Sep 2, 2019).
[22]Constitution of Vikas, Schedule VII, List II Entry I, Entry II.
[23]State of Madras v. Sri Vanamamalai Mutt Nanguneri, (1969) 2 MLJ 324
[24]BhudanChaoudhary v. State of Bihar, AIR 1955 SC 191
[25]Baldev Raj Chadda v. Union of India and Ors., AIR 1981 SC 70; See also, In Re C.N. Annadurai and Ors., (1958) 2 MLJ 363
[26]KunnathatThatehunniMoopil Nair v. State of Kerela and Anr., AIR 1961 SC 552
[27]Shri Ram Krishna Dalmia and Ors. v. Shri Justice S R Tendolkar and Ors., [1959] 1 SCR 279
[28]I.T.O. v. Mohd. Kunhl, AIR 1969 SC 430
[29]VishwasraoChudaman Patil v. Lok Ayukta, State of Maharashtra, LNIND 1984 Bom 320
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