Designation of Individuals as Terrorists — 2019 Amendment (Section 35(1)(b))

Before 2019, only an organisation could be branded a terrorist organisation in India. The Unlawful Activities (Prevention) Amendment Act, 2019 changed that overnight: by inserting the words “or an individual” into Section 35 and creating a new Fourth Schedule, Parliament armed the Central Government with power to designate a single human being a “terrorist” by executive notification — with no FIR, no charge, no trial, and crucially, no hearing before the name is published. This note maps the exact statutory architecture of Section 35(1)(b), the deeming grounds in Section 35(2)–(3), the denotification route in Sections 36–37, and the live constitutional contest in Sajal Awasthi and the Association for Protection of Civil Rights petitions over whether a power this drastic can survive Articles 14, 19 and 21.

What the 2019 Amendment Actually Did

The Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019) made a deceptively small textual change with enormous consequences. Chapter VI of the UAPA, dealing with “Terrorist Organisations,” was rebranded “Terrorist Organisations and Individuals.” Section 35, which till then let the Government add or remove organisations from the First Schedule, was amended to insert the words “or an individual” throughout, and a brand-new Fourth Schedule was created to hold the names of individuals so designated.

Before this, the worst the State could do administratively to a person was prosecute them for membership of, or association with, a proscribed body — a route governed by the machinery discussed in our note on declaration of an association as unlawful and the consequent penalty for membership of an unlawful association. After 2019, the individual themselves — not merely their group — can be officially labelled a terrorist. The Government's stated object, recorded in the Statement of Objects and Reasons of the Bill, was that terrorists are individuals who simply float a new outfit each time their old one is banned, so banning organisations alone was a game of whack-a-mole.

The companion National Investigation Agency (Amendment) Act, 2019 widened the NIA's reach in parallel — empowering officers of Inspector rank and above to investigate UAPA offences and the Director General, NIA, to attach property representing proceeds of terrorism — so the 2019 package as a whole sharply expanded executive counter-terror power.

Section 35: The Power to Add a Name

Section 35(1) empowers the Central Government, by notification in the Official Gazette, to: (a) add an organisation to the First Schedule, or the name of an individual to the Fourth Schedule, on the ground that the organisation or individual is involved in terrorism; (b) add to the First or Fourth Schedule the name of an organisation or individual identical with one already listed, to give effect to international treaties or for combating international terrorism; (c) remove an organisation from the First Schedule or the name of an individual from the Fourth Schedule; and (d) amend the First or Fourth Schedule in some other way.

Thus the operative designation power over individuals lives in Section 35(1)(a), with Section 35(1)(b) covering the treaty/international-terrorism variant. (Government notifications and the 2023 Ministry of Home Affairs procedure cite the power compendiously as “Section 35(1)” and “Section 35(1)(b)”; the substantive listing of a new individual rests on the “involved in terrorism” ground in clause (a).) The defining feature is that this is a purely executive act: a Gazette notification, signed by the Government, with no judicial or quasi-judicial step preceding it. This stands in deliberate contrast to the proscription of an association, which under Section 4 must be confirmed by a judicial Tribunal headed by a sitting High Court judge within a fixed time — a safeguard conspicuously absent for individual designation.

The Grounds: “Involved in Terrorism”

Section 35(2) is the gatekeeper. It provides that the Central Government shall exercise its power under clause (a) of sub-section (1) in respect of an organisation or an individual only if it believes that such organisation or individual is involved in terrorism. The threshold is therefore the Government's own subjective “belief” — not proof, not a finding by any court.

Section 35(3) then defines, by a deeming clause, when a person is “involved in terrorism.” An individual is deemed involved if such individual: (a) commits or participates in acts of terrorism; (b) prepares for terrorism; (c) promotes or encourages terrorism; or (d) is otherwise involved in terrorism. The fourth limb — “otherwise involved” — is the most criticised, because it is an open-ended residual category with no statutory boundary. “Terrorism” and “terrorist act” themselves draw on the wide definitions in Section 15 (examined in our note on the offences and penalties for terrorist acts) and the defined terms in Section 2. The vice that critics fasten on is vagueness: a belief standard plus an “otherwise involved” catch-all gives, in the words of the petitioners, “discretionary, unfettered and unbound” power, with no objective criteria to confine it.

The Missing Hearing: Audi Alteram Partem

The single most controversial feature is that the statute provides no notice to, and no opportunity to be heard for, the individual before the name is gazetted. The person typically learns they are a designated terrorist only when the notification is published. The only remedy is to apply after the fact under Section 36 for removal of the name.

This is squarely a natural-justice problem. In Maneka Gandhi v. Union of India (1978) 1 SCC 248 (AIR 1978 SC 597) the Supreme Court held that the “procedure established by law” under Article 21 must be fair, just and reasonable, and that the audi alteram partem rule is read into it. Significantly for the designation debate, Maneka Gandhi accepted that where urgency genuinely demands immediate executive action — there, impounding a passport — the rule may be satisfied by a post-decisional hearing rather than a pre-decisional one. The Government's defence of individual designation leans heavily on this logic: a terrorist warned in advance would abscond or destroy evidence, so the Section 36 review serves as the post-decisional hearing.

The petitioners counter that Section 36 is no real substitute. The review is by the very Government that ordered the listing; the statutory “review” on rejection (under Section 37) is confined to “principles applicable on an application for judicial review,” i.e. it tests only the legality of the decision, not its merits; and the reputational harm of being publicly branded a terrorist is instantaneous and irreversible, unlike a temporarily impounded passport. Whether the Maneka post-decisional template stretches this far is the crux of the pending constitutional challenge.

Section 36: Applying to Get the Name Off

Section 36 is the only built-in exit. An application may be made to the Central Government, under clause (c) of Section 35(1), to remove the name of an individual from the Fourth Schedule. By Section 36(2) such an application may be made by the individual themselves, or by any person affected by the inclusion of their name in the Fourth Schedule as a terrorist (mirroring the parallel right for organisations and persons affected by First Schedule entries).

The Central Government is to decide the application within a period prescribed by rules (the Unlawful Activities (Prevention) Rules prescribe a 45-day window for disposal). Crucially, the first decision-maker on removal is the same executive that made the designation — there is no independent first-instance adjudicator. Only on rejection does an independent body enter the picture: under Section 36(3) the applicant may, within one month of receiving the order of refusal, apply for review to a Review Committee constituted under Section 37. This two-step structure — self-review by the Government, then judicial-review-style scrutiny by a committee — is the entire procedural protection the individual enjoys.

Section 37: The Review Committee

Section 37 requires the Central Government to constitute one or more Review Committees for the purposes of Section 36. Each Committee consists of a Chairperson and not more than three other members possessing prescribed qualifications. Importantly, the Chairperson must be a person who is, or has been, a Judge of a High Court, appointed by the Central Government; in the case of a sitting Judge, the concurrence of the Chief Justice of the concerned High Court must be obtained.

The Committee's powers, however, are deliberately narrow. On a review against rejection it may direct removal of the name only if it considers that the decision to reject the application was flawed when considered in the light of the principles applicable on an application for judicial review. This is the language of administrative-law review — illegality, irrationality, procedural impropriety — not a merits re-hearing of whether the person is in fact a terrorist. So even before the High Court judge who chairs the Committee, the designated individual cannot fully re-argue the factual basis of the listing; they can only attack the lawfulness of the Government's refusal to delist. Critics argue this makes the “judicial” safeguard largely cosmetic, since the underlying belief of the Government is itself largely unreviewable on merits.

Reputation, Stigma and Article 21

A central plank of the challenge is that public branding as a “terrorist”, before any conviction, destroys reputation — a facet of the right to life and personal liberty. The Supreme Court has repeatedly held reputation to be intrinsic to Article 21. In Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591 the Court described reputation as “not only the salt of life but the purest treasure and the most precious perfume of life,” and recognised it as part of the right to life under Article 21. In Kishore Samrite v. State of Uttar Pradesh (2013) 2 SCC 398 the Court reiterated that the right to reputation is a constitutionally protected interest that cannot be sullied by unfounded allegations.

The argument runs that a designation under Section 35 inflicts precisely this stigma — an authoritative State declaration of terrorism — without the individual ever being heard, and that the harm cannot be undone by a later delisting. The State's response is that designation is a preventive, security measure, not a finding of guilt, and that the post-listing remedy in Sections 36–37, coupled with the bar on the designation being treated as proof in a criminal trial, blunts the reputational injury. How the courts weigh stigmatic harm against asserted security necessity will determine the provision's fate.

Article 14: Arbitrariness and Manifest Vagueness

The Article 14 attack is twofold. First, intelligible-differentia and reasonable-classification: there is no rational criterion distinguishing who gets designated from who merely gets prosecuted, leaving the choice to executive discretion. Second, manifest arbitrariness: the “believes” standard in Section 35(2), combined with the “otherwise involved in terrorism” residuary in Section 35(3)(d), is so open-textured that it offends the requirement that a law be reasonably certain.

The yardstick the Government invokes here is the proportionality framework from K.S. Puttaswamy v. Union of India (the privacy and Aadhaar decisions, (2017) 10 SCC 1 and (2019) 1 SCC 1): a rights-limiting measure is valid if it pursues a legitimate aim, has a rational nexus to that aim, is necessary (the least-restrictive option), and is proportionate in the strict sense. National security is plainly a legitimate aim; the contest is over necessity and proportionality — whether an executive branding without a pre-decisional hearing is the least restrictive means, given that the same security objectives might be met through prosecution or judicially-confirmed proscription of the underlying organisation.

How Courts Have Treated Anti-Terror Laws Before

The constitutional fate of Section 35 cannot be read without the Supreme Court's history of deference to anti-terror legislation. In Kartar Singh v. State of Punjab (1994) 3 SCC 569 a Constitution Bench upheld the bulk of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), affirming Parliament's competence and accepting stringent departures from ordinary criminal procedure as justified by the “magnitude” of terrorism — while reading in safeguards. A decade later, in People's Union for Civil Liberties v. Union of India (2004) 9 SCC 580, the Court upheld the Prevention of Terrorism Act, 2002 (POTA), including its tough bail regime, again on the rationale that exceptional threats permit exceptional preventive laws.

This pattern of upholding security legislation — while occasionally narrowing it by interpretation — is the backdrop against which designation will be judged. The more recent National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, which set a notably pro-prosecution “prima facie true” threshold for UAPA bail under Section 43D(5), illustrates the Court's continuing willingness to read the UAPA in a security-protective register. The designation challenge therefore swims against a strong jurisprudential current.

The Pending Challenge: Sajal Awasthi and APCR

The constitutionality of Sections 35 and 36 (as amended in 2019) is under direct challenge. In Sajal Awasthi v. Union of India (Writ Petition (Civil) No. 1076 of 2019) and the companion petition by the Association for Protection of Civil Rights v. Union of India, petitioners argued that the individual-designation power violates Articles 14, 19(1)(a) and 21: it is arbitrary, chills free speech and dissent, and brands a person a terrorist without due process or a hearing.

On 7 July 2023 the Supreme Court declined to decide the matter on merits and disposed of the petitions with liberty to the petitioners to approach the jurisdictionally appropriate High Courts, observing that constitutional challenges to statutory provisions are ordinarily better ventilated first before a High Court. The upshot is that, as of now, the individual-designation power remains in force and has never been struck down; the substantive constitutional question is open and is to be agitated afresh at the High Court level. For aspirants, the safe statement is that the provision stands, its validity is sub judice, and no superior court has yet pronounced on its merits.

The Power in Practice

The power was used almost immediately after it came into force on 14 August 2019. By a Gazette notification dated 4 September 2019, the Ministry of Home Affairs designated the first four individuals as terrorists under Section 35: Maulana Masood Azhar (Jaish-e-Mohammed), Hafiz Muhammad Saeed (Lashkar-e-Taiba), Zaki-ur-Rehman Lakhvi, and Dawood Ibrahim Kaskar. The Fourth Schedule has since grown steadily to include numerous individuals, with each addition published in the Gazette and circulated by regulators such as SEBI for compliance purposes.

In 2023 the Ministry of Home Affairs issued a written procedure for designating individuals under Section 35(1)(b), formalising internal vetting before a notification issues. The procedure confirms the structural point at the heart of the debate: the vetting is internal to the executive, and the affected individual's participation, if any, comes only through the post-listing Section 36 route. The bulk of designations to date have targeted alleged cross-border and pro-Khalistan operatives, which the Government cites as evidence that the power is being used against genuine terror actors rather than dissenters — a factual claim the petitioners contest as no answer to the structural absence of a pre-decisional hearing.

Designation Compared with Banning an Association

It helps to place individual designation alongside the older machinery. To ban an association, the Government issues a notification under Section 3, but that ban is provisional: it must be referred to a Tribunal headed by a High Court judge, which adjudicates whether there is sufficient cause within a statutory timeframe before the ban can be confirmed — the process traced in our notes on declaring an association unlawful and the adjudicating Tribunal. There is, in short, a built-in judicial check before the consequences crystallise.

Individual designation has no equivalent. There is no Tribunal, no time-bound judicial confirmation, and no pre-decisional adjudication — only the executive's belief, gazetted at once, with judicial-review-style scrutiny available afterwards and only on rejection of a removal application. This asymmetry — a judge before an organisation is banned, but only a committee after an individual is branded — is the structural anomaly at the centre of the constitutional debate. For the broader statutory scheme and the Act's objects, see the introduction and constitutional background and the UAPA notes hub.

Exam Takeaways

For judiciary and CLAT-PG purposes, fix these anchors. (1) The 2019 Amendment inserted “or an individual” into Section 35 and created the Fourth Schedule for designated individual terrorists; the substantive listing power is Section 35(1)(a), with Section 35(1)(b) the treaty/international-terrorism variant. (2) The threshold is the Government's belief that the person is “involved in terrorism” (Section 35(2)), deemed by the four grounds in Section 35(3): commits/participates, prepares, promotes/encourages, or is otherwise involved. (3) There is no pre-decisional hearing; the only remedy is the post-listing application under Section 36, then review by a Section 37 Committee chaired by a sitting or former High Court judge, applying judicial-review principles. (4) The constitutional debate pits Article 21 reputation (Umesh Kumar, Kishore Samrite) and natural justice (Maneka Gandhi's post-decisional-hearing doctrine) and Article 14 arbitrariness against the security-deference line (Kartar Singh, PUCL) and Puttaswamy proportionality. (5) The challenge in Sajal Awasthi and APCR was disposed by the Supreme Court on 7 July 2023 with liberty to move the High Courts; the provision stands un-struck-down and its validity remains open.