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Won’t allow proxy litigation against UAPA provisions, will hear those aggrieved: SC

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New Delhi: The Supreme Court said on Wednesday it will not allow “proxy litigation” contesting the constitutional validity of the provisions of the Unlawful Activities (Prevention) Act (UAPA) and would hear challenge to the vires of the anti-terror law by only those who are personally aggrieved by it.
Questioning how the petitioners are affected, a bench of Justices Bela M Trivedi and Pankaj Mithal told senior advocate Huzefa Ahmadi, appearing for some of them, that only those personally impacted can mount a challenge against the law.
“The petitioner must be an aggrieved party and there must be a violation of their rights. Only then can the question of challenging the vires of a legislative provision arise,” it said.
Ahmadi said the petitioners have assailed the provisions of UAPA which define terms like terrorism, terrorist activities and the Centre’s power to designate an entity as a “terrorist organisation”.
The senior lawyer submitted that public-spirited individuals and organisations could file public interest litigations to challenge the vires of a law which violates fundamental rights.
He referred to precedents where human rights organisations had initiated similar actions.
Justice Mithal said, “Will that not amount to proxy litigation? In PIL matters, the doctrine of locus standi may not apply in a strict sense. However, where vires of a law have been challenged, there has to be a semblance of involvement. Otherwise, it will be a proxy litigation on behalf of other persons, who do not want to come to the forefront. That would not be permissible. We have to be careful about allowing such proxy litigation.”
Ahmadi replied that ultimately it is a question of law which the court will have to look at.

The bench refused to hear Ahmadi any further in the matter and asked him to assist the court on the issue at a later stage.
It asked the counsel for the petitioners, who are directly aggrieved by the UAPA provisions, to come forward and argue their case.
Advocate Prashant Bhushan, appearing for three civil society members, including a journalist, said they were booked under the anti-terror law by the Tripura Police in 2021 over their social media posts on riots in the state.
The counsel appearing for the Tripura government told the bench that the petitioners being represented by Bhushan had already been granted protection from arrest by the top court on November 17, 2021.
He submitted that the top court had given them liberty to approach the Tripura High Court for quashing of the FIR in the case but they chose to pursue their petition here. “Please see, their main prayer is for the quashing of the FIR. The second prayer is with respect to the vires of the law,” he said.
Justice Trivedi, after perusing the earlier orders of the court and the counter affidavit of the Tripura government, asked Bhushan whether he wanted to move the high court or pursue their petition challenging the vires of law in the apex court.
Bhushan said he needs to take instructions from his clients and cannot make any statement without consulting them. Justice Trivedi told Bhushan, “Shall we take it that you don’t want to go to the high court (for quashing of FIR)?” Bhushan said if the court feels they should approach the high court, then they need to seek instructions.
“We don’t feel anything. It’s your call. If you want to proceed, we will not prevent you. This goes for other petitioners as well. You will have to take a call on whether you would like to continue with these proceedings or go back to the high court,” Justice Trivedi said. Bhushan then requested the court to grant some time to seek instructions after which the bench posted the matter for hearing on Thursday.
“We wanted to demonstrate how the UAPA is being abused by various police authorities across the country. Just see how the Act was invoked against these people. In this petition, we have challenged the FIR as being a gross abuse of process of law. A case under the UAPA was registered. For what? For tweeting ‘Tripura is burning’,” Bhushan said during the arguments. The counsel for Tripura said not a single life was lost in the incident which was referred to in the tweet. The top court is hearing a batch of 11 petitions including one file by former JNU student Umar Khalid challenging the constitutional validity of various provisions of the UAPA.

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