The petitioners, booked under UAPA over their comments on Tripura violence, argue that vague definitions allow police to target genuine criticism of the government.
TFM Desk
Two lawyers and a journalist recently booked with the draconian anti-terror law UAPA by Tripura Police have moved the Supreme Court seeking quashing of FIRs and challenging the constitutional validity of several provisions of the Unlawful Activities Prevention Act.
The petitioners challenged the constitutional validity of Section 2(1)(o)(which defines “unlawful activity”), Section 13(punishment for unlawful activity) and 43D(5) (restrictions on grant of bail) of the Unlawful Activities Prevention Act.
A Bench headed by the Chief Justice of India NV Ramana on Thursday agreed to urgently list the matter after it was mentioned by Advocate Prashant Bhushan on behalf of the petitioners, according to Live Law.
The petition has been filed by two lawyers Mukesh and Ansarul Haq Ansar and journalist Shyam Meera Singh booked with the UAPA by the Tripura police over their social media posts about the recent communal violence which took place in the state.
While the two lawyers have been charged with UAPA for their fact finding report “Humanity Under Attack in Tripura #MuslimLivesMatter”, journalist Shyam Meera Singh has been charged for tweeting “Tripura Is Burning”
The petitioners stated that they moved the Supreme Court against the “targeted political violence against the muslim minorities” in the state of Tripura during the second half of October, 2021.
The plea sought the apex court’s directions against “invocation of UAPA by state of Tripura against members of civil society including advocates and journalists who documented and spoke against targeted atrocities perpetrated on minorities of October 2021, so as to monopolise the flow of information from areas affected by violence by criminalising the very act of fact finding and reporting creates chilling effect on freedom of speech and expression.”
“UAPA has been invoked against advocates to suppress a fact finding report titled as “Humanity Under Attack in Tripura #MuslimLivesMatter” as regards the violence and also journalists for merely tweeting “Tripura is burning”-which it was at the time when the tweet was made” the plea states.
Vague definition of unlawful activities under UAPA
The petitioners argued that the definition of ‘unlawful activities’ under UAPA prohibits an innocuous speech by threat of punishment and casts a ‘wide net’ on freedom of speech and expression:
It makes even possession of documentation and literature, reporting of information, expression of ideas, thoughts, and discussions which are no threat to security of India and have no tendency to create public disorder punishable under Section 13 of the Act.
Terming language of the section ‘over-broad’, the petitioners argued that it leaves open the possibility that the person criticising measures of government or acts of public officials, might also come within the ambit of the penal section.
According to the petitioners, the definition fails to define criminal offence with sufficient definiteness and is so ‘vague’ so as to make its application dependent solely on the discretion of police machinery.
“Ordinarily, neither the accused would be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the section be clear as to on which side of the draw a particular speech/expression will fall.”
‘Monopolise flow of information by invoking UAPA’
The petitioners contended that efforts by the state of Tripura was to monopolise the flow of information and facts emanating from the affected areas by invoking provisions of the Unlawful Activities (Prevention) Act, 1967, against members of civil society including advocates and journalists who have made the effort to bring facts in relation to the targeted violence in the public domain.
If the state is allowed to criminalise the very act of fact finding and reporting, that too under the stringent provisions of the UAPA, then only facts that will come in the public domain are those that are convenient to the state, the petitioners argued.
Stressing on the fact that under UAPA provisions anticipatory bail is barred and the idea of bail is a remote possibility, the petitioners called such criminalising a ‘chilling effect’ on the freedom of speech and expression of members of civil society.
“If the quest for truth and reporting thereof itself is criminalised then the victim in the process is the idea of justice.” the petition reads.
‘Chilling effect on freedom of speech & expression’
The petitioners also pointed out reasons to support their stance that the impugned provisions of UAPA produce a ‘chilling effect’ on freedom of speech and expression and are violative of Articles 14, 19(1)(a) & 21 of the Constitution of India:
- The vagueness of the definition of unlawful activity and ‘wide net’ that it casts on freedom of speech and expression.
- It’s tendency brings within its fold mere criticism of government policies or actions of the day without any effect on public order or security, sovereignty and integrity of India.
- Its indiscriminate use by the authorities against those critical of the government in view of the absolute bar on anticipatory bail in Section 45(d)(4) of the act.
- Almost impossibility of securing bail under Section 45(d)(5) of the act of 1967
Challenge to constitutional validity of UAPA pending before Supreme Court
The petition also cited the case of Sajal Awasthi v. Union of India, and Association For Protection of Civil Rights v. Union of India, where the constitutional validity of the Unlawful Activities (Prevention) Act, 1967 has been challenged. The matters are currently pending before a bench presided by the Chief Justice of India, in which notice was issued on these petitions.