Designation of Terrorist Organisations (Sections 35–40) — Schedule

Chapter VI of the Unlawful Activities (Prevention) Act, 1967 is the engine room of India's anti-terror architecture. Inserted by the 2004 amendment that followed the repeal of the Prevention of Terrorism Act, 2002, Sections 35 to 40 give the Central Government the power to brand an organisation a "terrorist organisation" by simply adding its name to the First Schedule, and then make a cluster of activities around that listed name independently criminal. The mechanism is deceptively administrative: a notification in the Official Gazette, a Schedule, a Review Committee. But the legal consequences are severe, because once a name appears on the First Schedule, membership, support and fund-raising directed at that organisation become offences carrying up to fourteen years' imprisonment. This article maps the designation machinery (Sections 35-37), the offences it activates (Sections 38-40), and the constitutional and evidentiary controls the courts have built around them.

The Scheme of Chapter VI: Designation as the Trigger

Chapter VI of the Unlawful Activities (Prevention) Act, 1967 operates on a single organising idea: designation is the trigger. Before 2004, India's dedicated anti-terror law was the Prevention of Terrorism Act, 2002 (POTA), which itself followed the lapsed Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). When the United Progressive Alliance government repealed POTA in 2004, it did not abandon the proscription model; it transplanted it into the UAPA. The Unlawful Activities (Prevention) Amendment Act, 2004, with effect from 29 December 2004, inserted Chapter VI and the First Schedule, importing the architecture of "terrorist organisations" almost wholesale from the repealed POTA.

The logic is sequential. Section 35 empowers the Central Government to add an organisation's name to the First Schedule. Section 36 creates a route out of the Schedule through denotification. Section 37 constitutes the Review Committees that supervise that exit. Sections 38, 39 and 40 then make membership of, support for, and fund-raising for a Scheduled organisation distinct offences. Critically, none of the offence sections require the prosecution to prove that the organisation is in fact terrorist at trial; the organisation's presence on the First Schedule is itself the operative fact. This is what distinguishes Chapter VI from the older Chapter II machinery for declaring an association "unlawful", which we examine separately in declaration of association as unlawful. There, a notification must be confirmed by a Tribunal; here, the gazette notification stands until denotified.

Section 35: Power to Add to and Amend the Schedule

Section 35, headed "Amendment of Schedule, etc.", is the source of the designation power. It authorises the Central Government, by notification in the Official Gazette, to add an organisation to the First Schedule, add the name of an individual to the Fourth Schedule, remove an organisation or individual from the relevant Schedule, or amend the Schedule in any other way. The power is bounded by a belief requirement: the Government "shall exercise its power" only if it believes that the organisation or individual "is involved in terrorism".

Section 35 then defines that belief. An organisation or individual is "involved in terrorism" if it or he commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism, or is otherwise involved in terrorism. The list deliberately reaches beyond the commission of a terrorist act to preparation, promotion and the residual catch-all of being "otherwise involved". An organisation, for the purposes of the Schedule, is treated as continuing in existence under a different name if it operates under that name, so a banned outfit cannot escape proscription merely by re-branding.

The Fourth Schedule limb is a recent graft. The Unlawful Activities (Prevention) Amendment Act, 2019 extended Section 35 so that the Government could designate not only organisations but individuals as terrorists, listing them in the newly created Fourth Schedule. Before 2019, only organisations could be Scheduled. This individual-designation power was challenged precisely because the procedural safeguards built for organisations sit uneasily on individuals, a tension discussed below.

First Schedule and Fourth Schedule: Organisations versus Individuals

The two Schedules created by Section 35 do different work. The First Schedule lists organisations designated as terrorist organisations; the Fourth Schedule, inserted in 2019, lists individuals designated as terrorists. The distinction is not merely cosmetic, because the offence sections of Chapter VI, Sections 38 to 40, are framed by reference to a "terrorist organisation", that is, an organisation listed in the First Schedule (or one operating under the same name as a listed organisation). Membership, support and fund-raising offences therefore attach to First Schedule organisations.

Individual designation under the Fourth Schedule attracts the stigma of the "terrorist" label and the asset-freezing and listing consequences that flow from designation, but it does not by itself create the Section 38 to 40 offence template, because those offences are organisation-facing. The First Schedule has, since 2004, accumulated dozens of entries, ranging from Lashkar-e-Taiba and Jaish-e-Mohammed to the CPI (Maoist), the latter being the organisation at the centre of much of the Section 38 and 39 case law. Understanding which Schedule a name sits on is the threshold question in any Chapter VI prosecution, and it connects to the foundational definitions of "terrorist act", "organisation" and "terrorist organisation" in Section 2.

Section 36: Denotification and the Exit Route

Section 36 is the procedural counterweight to the broad listing power in Section 35. Because designation occurs by executive notification rather than judicial confirmation, the Act provides a structured exit. An application for removal from the First or Fourth Schedule may be made to the Central Government either by the organisation itself or by any person affected by the inclusion of the organisation in the Schedule. This second category matters: a person criminally charged under Sections 38 to 40 by reference to a listed organisation is "affected" and may seek denotification.

The Central Government must decide the application within a prescribed period. Where the Government refuses to remove the name, the applicant may apply for a review to a Review Committee constituted under Section 37, and must do so within one month from the date of receipt of the order of refusal. The Review Committee then examines the refusal. The statutory standard is unusual and important: the Committee may allow the review and order removal if it considers, having regard to the principles applicable on an application for judicial review, that the decision to refuse was "flawed". The Act thus imports a judicial-review-style standard into an administrative review, focusing on the legality and reasonableness of the refusal rather than re-trying the merits afresh. This is a deliberately deferential test, and it explains why denotification is rarely granted in practice.

Section 37: Review Committees

Section 37 constitutes the Review Committees that supervise denotification under Section 36. The Central Government may constitute one or more such Committees. Each Committee consists of a Chairperson and such other members, not exceeding three, as the Central Government may appoint. The crucial safeguard lies in the qualification of the Chairperson: the Chairperson of a Review Committee must be a person who is, or has been, a judge of a High Court.

The requirement of judicial leadership is the principal due-process guarantee in the designation machinery. Because the original listing is purely executive, the only independent scrutiny an organisation receives is at the Review Committee stage, and even that is engaged only after the Government has first refused a denotification application. The standard the Committee applies, the judicial-review standard imported by Section 36, further limits the depth of that scrutiny. Compare this with the more robust adjudicatory model under Chapter II, where a declaration that an association is unlawful must be referred to a Tribunal headed by a sitting High Court judge for confirmation, examined in our note on the tribunal for adjudication. The Review Committee is reactive and deferential; the Tribunal is mandatory and adjudicatory. That structural contrast is a favourite examination point.

Section 38: Offence Relating to Membership of a Terrorist Organisation

Section 38 criminalises membership of a terrorist organisation, but it is carefully drafted to require more than a name on a list. A person commits the offence if he associates himself, or professes to be associated, with a terrorist organisation "with intention to further its activities". The offence is punishable with imprisonment for a term which may extend to ten years, or with fine, or with both. Section 38 also contains an exception: it does not apply where the person can show that the organisation was not a terrorist organisation at the time he became associated with it or professed to be associated with it, and that he has not taken part in its activities since it became a terrorist organisation.

The phrase "with intention to further its activities" is the heart of the section and the answer to the constitutional objection that mere membership cannot be a crime. The Supreme Court in Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, drew an explicit distinction between association or support simpliciter and association or support in furtherance of the activities of a terrorist organisation. The Court held that mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract Section 38 (or Section 39) unless the association is accompanied by an intention to further the organisation's activities. On that reasoning, the Court granted bail to the accused, who had been found with literature sympathetic to the CPI (Maoist) but against whom no act furthering Maoist activity was made out.

Section 39: Offence Relating to Support Given to a Terrorist Organisation

Section 39 targets support for, rather than membership of, a terrorist organisation. A person commits the offence if, with intention to further the activity of a terrorist organisation, he invites support for the terrorist organisation, and the support is not, or is not restricted to, the provision of money or other property; or he arranges, manages or assists in arranging or managing a meeting which he knows is to support the terrorist organisation, or to further its activity, or is to be addressed by a person who associates with the organisation; or he addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity. The offence is punishable with imprisonment for a term which may extend to ten years, or with fine, or with both.

Section 39 is the provision most often deployed against speech, meetings and literature, which is precisely why the "intention to further the activity" requirement is constitutionally load-bearing. In Thwaha Fasal, the Supreme Court applied the same furtherance test to Section 39 as to Section 38, insisting that inviting support or arranging a meeting becomes criminal only when coupled with the intent to advance the organisation's activities. This reading channels the long shadow of Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, where the Constitution Bench saved the sedition provision only by confining it to incitement to violence or public disorder, and the line of authority rejecting "guilt by association". Without the furtherance element, Section 39 would risk punishing the bare expression of sympathy.

Section 40: Offence of Raising Funds for a Terrorist Organisation

Section 40 is the most severely punished offence in Chapter VI. A person commits the offence if, with intention to further the activity of a terrorist organisation, he invites another person to provide money or other property, and intends that it should be used, or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or he receives money or other property intending or having reasonable cause to suspect that it might be so used; or he provides money or other property knowing or having reasonable cause to suspect that it would or might be used for the purposes of terrorism. The offence is punishable with imprisonment for a term which may extend to fourteen years, or with fine, or with both.

Two features distinguish Section 40 from Sections 38 and 39. First, the punishment ceiling is fourteen years rather than ten, reflecting the legislative judgment that financing terrorism is the most dangerous form of support. Second, the mens rea is pitched lower at the periphery: providing or receiving funds with "reasonable cause to suspect" they might be used for terrorism suffices, a constructive-knowledge standard that eases the prosecution's burden compared with the "intention to further" gravamen of Sections 38 and 39. Section 40 sits alongside the broader counter-terror-financing provisions and the chapter on forfeiture of proceeds of terrorism, and it dovetails with India's obligations under the Financial Action Task Force regime.

"Intention to Further": The Gravamen of Sections 38 and 39

If a single phrase controls Chapter VI litigation, it is "with intention to further its activities". The Supreme Court's decision in Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, is the modern locus classicus. The two-judge Bench held that the offences under Sections 38 and 39 are not made out by establishing that the accused was a member of, or expressed support for, a Scheduled organisation. What must be shown is an active intention to further the organisation's activities, an intention that must be discernible from overt acts rather than presumed from association or possession of literature.

This reading does substantial constitutional work. It aligns Chapter VI with the rejection of "guilt by association" and with the proximate-incitement standard. The same year, in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, the Court allowed prolonged pre-trial incarceration to be balanced against the right to a speedy trial under Article 21, granting bail despite the stringent bail bar where trial had been inordinately delayed. Thwaha Fasal and Najeeb together represent the Court's attempt to inject proportionality into a statute whose default settings favour the prosecution. The furtherance requirement is, in effect, the courts' judicial gloss preventing Sections 38 and 39 from collapsing into pure status offences.

Membership and the Arup Bhuyan Saga

The constitutional status of membership offences travelled a long and contradictory road. In Arup Bhuyan v. State of Assam, (2011) 3 SCC 377, a two-judge Bench read down Section 3(5) of TADA, holding that mere membership of a banned organisation is not sufficient to constitute an offence unless the person resorts to violence, incites people to violence, or creates public disorder by violence or incitement. The Court relied on United States First Amendment jurisprudence, including Elfbrandt v. Russell, 384 U.S. 11 (1966), which rejected the doctrine of guilt by association. The companion decision State of Kerala v. Raneef, (2011) 1 SCC 784, took the same view, and Indra Das v. State of Assam, (2011) 3 SCC 380, followed it.

That line was overturned in 2023. In Arup Bhuyan v. State of Assam, 2023 SCC OnLine SC 338, a three-judge Bench (M.R. Shah, C.T. Ravikumar and Sanjay Karol JJ.) overruled the 2011 trilogy and held that mere membership of an association banned under the UAPA is sufficient to constitute an offence under Section 10(a)(i) of the Act, upholding the constitutional validity of that provision. The Bench criticised the earlier decisions for reading down the provision without hearing the Union of India and for importing American constitutional standards into the Indian context. The 2023 ruling concerned the unlawful-association membership offence under Section 10, examined in our note on the penalty for membership of unlawful association; it did not displace the distinct "intention to further" requirement built into Sections 38 and 39 of Chapter VI, which Thwaha Fasal continues to govern.

The Evidentiary Burden, Bail and the Watali Standard

Designation offences are practically inseparable from the UAPA's notoriously stringent bail regime. Under the proviso to Section 43D(5), a court shall not release an accused on bail if, on a perusal of the case diary or the report under Section 173 CrPC, it is of the opinion that there are reasonable grounds for believing that the accusation against the accused is prima facie true. In National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, the Supreme Court held that at the bail stage the court must accept the material on record as it is, without conducting a mini-trial or weighing the probative value of evidence, and must form only a broad probabilistic view. The Court described the degree of satisfaction required as comparatively lighter than that needed to record a finding of guilt.

Watali made bail in Chapter VI cases exceptionally difficult, because a prima facie reading of the chargesheet ordinarily suffices to keep an accused in custody. The countervailing decisions, Thwaha Fasal on the furtherance requirement and K.A. Najeeb on delay, operate as the principal escape valves. Lower courts have since had to reconcile Watali's deference to the prosecution narrative with Thwaha Fasal's insistence that the narrative actually disclose an intention to further terrorist activity. The interaction of these authorities is the single most heavily litigated area of Chapter VI practice.

Constitutional Challenges and Due-Process Concerns

The designation power has drawn sustained constitutional criticism on Articles 14, 19 and 21. The core objection is that proscription is purely executive at the point of decision: an organisation lands on the First Schedule on the Government's belief, with no prior hearing and no Tribunal confirmation, the only scrutiny being the deferential, post-refusal Review Committee under Sections 36 and 37. Critics contrast this with the Chapter II model, where a declaration of unlawfulness must be confirmed by a Tribunal headed by a High Court judge.

The 2019 amendment sharpened these concerns by extending designation to individuals under the Fourth Schedule. The argument, pressed in writ petitions before the Supreme Court, is that the procedural safeguards designed for organisations map poorly onto individuals: there is no pre-designation hearing, the stigma of being labelled a "terrorist" attaches immediately, and the only remedy is the same deferential Review Committee. The constitutional grounding of the entire UAPA framework, and the balance the courts have struck between national security and fundamental rights, is traced in our overview of the introduction, object and constitutional background. The recurring theme across the case law, from Kedar Nath Singh through Thwaha Fasal, is that the courts have preferred to read down or qualify the offence provisions through the intention-to-further requirement rather than strike down the designation power itself.

Terrorist Organisation versus Unlawful Association: Two Models Compared

A frequent source of confusion, and a reliable examination question, is the relationship between the Chapter VI "terrorist organisation" regime and the older Chapter II "unlawful association" regime. Both allow the Central Government to proscribe collective entities, but they differ in procedure, consequence and standard. Under Chapter II, the Government declares an association unlawful by notification, but that notification has no effect until confirmed by a Tribunal headed by a sitting High Court judge, and the membership offence under Section 10 carries lower maxima. Under Chapter VI, the Government lists an organisation on the First Schedule by notification that takes effect immediately, with only a reactive Review Committee for redress, and the associated offences under Sections 38 to 40 reach up to fourteen years.

The two regimes can overlap: the CPI (Maoist), for instance, has featured in both contexts. The decisive difference for a prosecutor is which proscription is invoked, because it determines the applicable offence sections, the punishment range, and the proof of intent required. Sections 38 and 39 demand intention to further the organisation's activities; the Section 10 membership offence, after Arup Bhuyan (2023), does not require proof of furtherance beyond membership of a banned association. Mastering this contrast, and the parallel offence ladders in our note on offences and penalties for terrorist acts, is essential for any answer on Chapter VI.