Ending the year-long detention of three student activists booked by Delhi Police under the UAPA anti-terror law, the Delhi High Court granted them bail Tuesday, saying “it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy”.
Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha were arrested in May 2020 for their alleged role in the Northeast Delhi riots conspiracy case and were later booked under the UAPA. While JNU students Narwal and Kalita are in Tihar Jail, Tanha, a Jamia Millia Islamia student, is out on a two-week interim custody bail to take his examinations.
Questioning and cautioning against the tendency of “foisting extremely grave and serious penal provisions” of the stringent Unlawful Activities (Prevention) Act “frivolously upon people”, the bench of Justices Siddharth Mridul and Anup Jairam Bhambhani said “wanton use of serious penal provisions would only trivialise them”.
The bench said that the allegations against the accused do not prima facie disclose the commission of any offence under UAPA section 15 (terrorist act), section 17 (punishment for raising funds for terrorist act) and section 18 (punishment for conspiracy) of the UAPA. And therefore, the additional conditions, limitations and restrictions on grant of bail under section 43 D (5) of UAPA do not apply.
In first remarks on the order granting bail, a spokesperson for Delhi Police said: “We are not satisfied with the interpretation of the provisions of Unlawful Activities (Prevention) Act by the Hon’ble High Court in a matter concerned with grant of Bail. We are proceeding with filing a Special Leave Petition before the Hon’ble Supreme Court of India.”
NARROWS UAPA APPLICATION
In its order granting bail to Tanha where it cited a string of Supreme Court rulings – the order on bail for Narwal and Kalita flowed from the order on Tanha — the High Court narrowed the application of the stringent UAPA.
It said “notwithstanding the fact that the definition of ‘terrorist act’ in section 15 UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC… Also noteworthy are the words of another Constitution Bench of the Hon’ble Supreme Court in Sanjay Dutt (supra) to the effect that when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute “are not roped in by stretching the law”.”
“It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed narrowly in order to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the Legislature never intended to punish.”
“Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’. In our opinion, the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less,” it said.
The High Court took note of the fact that the “State is at pains to argue” that section 15 contemplates not only an act ‘with intent to threaten’ the foundations of a nation but also any act ‘likely to threaten’ such foundations.
“The point sought to be made is that even the likelihood that the appellant’s acts or omissions may threaten the nation are an offence within the meaning of sections 15 and 18 of the UAPA. Having given our anxious consideration to this aspect of ‘likelihood’ of threat and terror, we are of the view that the foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situated in the heart of Delhi,” it said.
While deciding Tanha’s bail, the High Court said: “As very pithily put by the Hon’ble Supreme Court in P. Chidambaram (supra), the gravity of the offence alleged would beget the length of sentence, as may be awarded upon conclusion of trial; but an assertion as to the gravity of the offence cannot thwart the grant of bail. On the other hand, apart from militating against the presumption of innocence, pretrial detention would lead to needless psychological and physical deprivations; and above all, would seriously hamper the appellant from participating in and contributing to the preparation of his defence at the trial.”
PULLS UP SPECIAL COURT
It frowned on the Special Court for denying bail to the appellant (Narwal) by “proceeding to accept the allegations contained in the subject charge-sheet without any analysis or appreciation of the gravamen of the offences alleged… the learned Special Court is persuaded to think that the purported independent review by an independent authority of the evidence gathered, leading to the grant of sanction for prosecution by the Central Government, almost obviates the need for the court to apply its own mind and consider whether or not any offence is disclosed against an accused under Chapters IV or VI of the UAPA”.
THE RIGHT TO PROTEST
The High Court underlined the right to protest and its legitimacy. Citing a slew of Supreme Court judgments, the High Court observed that “protests against Governmental and Parliamentary actions are legitimate; and though such protests are expected to be peaceful and non-violent, it is not uncommon for protesters to push the limits permissible in law.”
“The observations of the Hon’ble Supreme Court in Mazdoor Kisan Shakti Sangathan (supra) appear to us to be the most lucid and pithy answer as to the contours of legitimate protest and these bear repetition. In the said decision, the Hon’ble Supreme Court says that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated,” it said.
“The Hon’ble Supreme Court further says that a demonstration may take various forms: it may be noisy, disorderly and even violent, in which case it would not fall within the permissible limits of Articles 19(1)(a) or 19(1)(b) and in such case the Government has the power to regulate, including prohibit, such protest or demonstration. The Government may even prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic but the Government cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Articles 19(1) (a) and 19(1)(b) of the Constitution. Assuming, without however expressing any opinion thereon, that in the present case the protest in question crossed the limit of what is permissible under Articles 19(1)(a) and 19(1)(b) and went into the forbidden realm of a non-peaceful protest, first of all there is nothing to show that the Government had prohibited the protest at the relevant time, much less is there anything to show that the appellant was the perpetrator or conspirator or was involved in any illegal protest.”
“In any case, whatever offences are alleged to have been committed by reason of the protests having turned non-peaceful are subject matter of F.I.R. No. 298/2019, in which the appellant is an accused and in which he has already been admitted to bail and will face trial in due course,” it said.
CHARGESHEET FAILS UAPA TEST
“There is absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA. We are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found the offences defined under section 15, 17 or 18 UAPA.”
All three accused have been directed to furnish a personal bond of Rs 50,000 each with two sureties of like amount. They have been directed not to leave the country, share their mobile number with the local SHO, and not contact prosecution witnesses or tamper with evidence.