State Blurred Lines Between Right to Protest and Terrorism: Delhi HC

HC observed that prima facie offenses under the stringent provisions of the UAPA were not made out.

The Delhi High Court on Tuesday granted bail to three anti-CAA (Citizenship Amendment Act) activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha who were arrested in May 2020 in connection with the February 2020 communal riots that swept North-East Delhi. Offences under the stringent provisions of the UAPA were not made out, the high court said.

"We are afraid, that in our opinion, shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under sections 15, 17 and/or 18 of the UAPA," the high court said.

The division bench comprising Justices Siddharth Mridul and Anup Bhambhani penned three separate but overlapping orders while granting bail.

In its "anxiety" to suppress dissent for morbid fear that matters may go out of hand, the high court was constrained to express that, "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," the high court said in Narwal's order. "If such blurring gains traction, democracy would be in peril," Kalita's order read.

The legislature has given a very wide meaning to what comprises of terrorism, or a terrorist act. In such cases, the court must be careful in employing the definitional words and phrases used in section 15 (of UAPA) in their absolute, literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of 'terrorist act', without understanding how terrorism is different even from conventional, heinous crime, it added.

The high court granted bail relying on three principles namely right to protest; the fact that the actions of the three activists did not fall under the general definition of what 'terrorism' is construed to be; the inordinate time it would take for the trial to conclude in light of the fact that court proceedings have been truncated due to the COVID-19 pandemic.

The high court observed that the three activists participated in Anti-CAA protests which was limited to North-East Delhi. The police had made no allegation to suggest that the anti-CAA protest extended even to the whole of the National Capital Territory of Delhi, the high court further noted. "A perusal of the subject charge-sheet shows that the protest and the disruptions it is alleged to have caused were restricted to North-East Delhi. It would therefore be a stretch to say that the protest affected the community at large for it to qualify as an act of terror," the high court said.

Kalita, Narwal and Tanha were booked under the stringent provisions (section 15, 16 and 18) dealing with terrorism and conspiracy of the Unlawful Activities (Prevention) Act in the FIR 59/20 which pertains to the "deep-rooted conspiracy" that led to the riots which left 53 dead and injured hundreds. The Delhi Police arrested all three in May 2020. While Kalita and Tanha have been behind bars since then, Narwal was recently granted three weeks parole on May 10 light of her father's death due to covid.

Kalita, Narwal and Tanha have already secured bail in the other FIRs lodged against them in connection with the Delhi Riots. After securing bail today, it is likely that the three will be released from Tihar Jail soon.

Foisting extremely grave penal provisions frivolously undermines the Legislature's intent

The high court reiterated that one has a fundamental right to protest. It further pointed out that the anti-CAA protest took place under the supervision of the Delhi Police and the Government had not prohibited the same.

"…Surely the right to protest is not outlawed and cannot be termed as a 'terrorist act' within the meaning of the UAPA, unless of course the ingredients of the offences under sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in chargesheet and the material filed therewith," it observed.

"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 order added.

The high court observed that where provisions of law with strict penal consequences are vague, then the courts must construe them narrowly to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly sucks within its ambit persons whom the Legislature never intended to punish".

"Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA (terrorism/conspiracy charges) frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation," the common observation read.

"Wanton use of penal provisions would only trivialise them," the high court added.

The high court observed that acts of terrorism 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.

Nothing to suggest commission of terrorist acts

There is absolutely nothing in the charge-sheets, by way of any specific or particularised allegation, that would show the possible commission of a 'terrorist act' within the legislative meaning and intent of the same, or an act of 'conspiracy' to commit or an 'act preparatory' to commit, a terrorist act within the meaning of section 18 UAPA, the high court said.

The division bench observed that the Parliament's "intent and purpose" in enacting the UAPA and amending it first in 2004 and later in 2008 to bring terrorist activity within its scope, was and could only have been, to deal with matters of profound impact on the 'Defence of India'. "Nothing more and nothing less…It was not the intent, nor the purpose of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA…" it added.

In Narwal and Kalita's case, the high court observed that no specific, particularised or definite act was attributed to them, apart from the admitted fact that she engaged herself in organising anti-CAA and anti-NRC protests around the time when violence and rioting broke out in the certain parts of North-East Delhi.

In Tanha's case, the court said it was able to "discern only one specific, particular and overt act" which he is stated to have committed, namely that he handed over a SIM card given to him by someone else, to a co-conspirator/co-accused, which, it is further alleged, was used by the said co-accused to send messages on a WhatsApp group.

The high court added that after reading of the portions of chargesheet filed against the three accused, it was seen that invariably their names appeared along with that of several other alleged co-conspirators. Even then, the three were not considered to be the main accused who issued any instructions or directions.

"In our reading of the subject chargesheet and the material included in it, therefore, the allegations made against the appellant are not even borne out from the material on which they are based. The State cannot thwart grant of bail merely by confusing issues," Narwal's order read.

"Allegations relating to inflammatory speeches, organising of chakka jam, instigating women to protest and to stock-pile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularized allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA," the order further observed.

State's submissions based on inferences, not factual allegations

In the present case, the high court noted that there wasn't even a "whisper of an allegation" that any weapons were recovered from the three activists.

The high court did not buy the state's argument that section 15 of the UAPA contemplates not just the act 'with intent to threaten' the foundations of a nation but also any act 'likely to threaten' such foundations.

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," the high court said.

"…mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise," the order added. "In fact, upon a closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations," the high court pointed out.

Trial interrupted by pandemic, unlikely to finish soon

The trial court has taken cognisanze of some of the offences in the chargesheet which runs into more than 19,000 pages. But charges are yet to be framed, the high court noted.

Some 740 prosecution witnesses, including public witnesses, protected witnesses and police witnesses are stated to have been cited in the subject chargesheet but deposition of the witnesses is yet to commence. Considering the prevailing situation, namely the havoc created by the second wave of the COVID-19 pandemic, it is hardly likely that trial will proceed, much less conclude anytime soon, the high court observed.

Should this court wait till the appellant's right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated before it steps in and wakes up to such violation? We hardly think that that would be the desirable course of action. In our view the court must exercise foresight and see that trial in the subject chargesheet will not see conclusion for many-many years to come," the order said.

The object of bail is neither punitive nor preventative but is principally to secure the presence of the accused at the trial; and that punishment begins only after conviction and that everyone is deemed to be innocent until duly tried and found guilty," the division bench said. "It is well settled that detention in custody pending completion of trial can cause great hardship to an accused; that it is improper for any court to refuse bail as a mark of disapproval of the past conduct or to refuse bail to a person yet to be convicted only to give him a taste of imprisonment as a lesson," it added.

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