Video Producer: Shohini Bose
Video Editor: Purnendu Pritam
The Delhi High Court has granted bail to three Unlawful Activities (Prevention) Act (UAPA) accused, Asif Iqbal Tanha, Natasha Narwal, and Devangana Kalita, on Tuesday, 15 June. They have been granted bail in all other cases involving them and will, after completing formalities, walk out of jail.
The Bench led by Justices Siddharth Mridul and Anup Jairam Bhambhani announced the conditions for bail which is subject to a personal bond of Rs 50,000 and two local sureties. The accused will also have to surrender their passports and not indulge in activities that could hamper the investigation in the case.
They have been granted bail in the case registered under FIR 59 – one of the northeast Delhi riots cases that aims to unravel the alleged large-scale conspiracy that the Delhi Police special cell has been probing.
While Asif Iqbal Tanha is a student of Jamia Millia Islamia, Natasha Narwal and Devangana Kalita are PhD scholars at Jawaharlal Nehru University.
Hours after the order was passed Delhi Police said they will challenge the grant of bail by the High Court in the Supreme Court.
Strong Observations By the Delhi HC on Delhi Police’s Case
The court remarked how even if protests are large, even if they become disorderly, they do not automatically become terrorist offences. Read this crucial portion of Devangana Kalita’s bail order:
- 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. As expatiated by the Hon’ble Supreme Court in the precedents cited above, 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 making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA.
The court also noted that the state has blurred the lines between the constitutional right to protest and terrorist activity. Found in both Narwal and Kalita’s judgments:
- We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.
An extremely important point that questions the investigation that Delhi Police has conducted, which the court said it was unpersuaded and unconvinced by.
- 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 CRL.A. 39/2021 Page 80 of 133 protests, 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. We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation and we are of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise.
The court said such allegations, without any basis, undermined the very intent and purpose of a law like UAPA:
- In our view, on an objective reading of the allegations contained in the subject charge-sheet, there is a complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence, contained in the CRL.A. 39/2021 Page 85 of 133 subject charge-sheet that would make-out the ingredients of the offences under sections 15, 17 or 18 UAPA. Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA 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 Alleged Conspiracy Under FIR 59
The Delhi Police special cell has tried to make the case that the communal violence in which 53 people were killed and property worth crores was destroyed was a conspiracy by activists protesting against the Citizenship (Amendment) Act. Additionally, the police alleged that the activists orchestrated the violence in a way that the chakka jam would lead to a full-blown case of communal violence.
The police had claimed that members of Pinjra Tod, an organisation that Kalita and Narwal are a part of, had mobilised women to protest at the Seelampur protest site close to Jaffrabad in northeast Delhi. The three were accused of actively being involved in a manner to cause disruption in Delhi, that would lead to a law and order problem at an unprecedented scale.
The police believe that the day to incite violence was chosen on the basis of the visit of the then US President Donald Trump, to cause maximum embarrassment.
Advocates Adit S Pujari, Tusharika Mattoo, Kunal Negi appeared for Kalita and Narwal. Senior Advocate Siddharth Aggarwal with Advocate Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhari, Nitika Khaitan appeared for Tanha.
What the Original Charge Sheet Says and Fails to Prove About the ‘Conspiracy’
According to the 17,000-page original charge sheet, the police has tried to make the case of conspiracy around three WhatsApp groups, where anti-CAA protesters, student leaders, and intellectuals were active.
The charge sheet was able to demonstrate two things relatively effectively:
- That there was some degree of co-ordination between different groups of anti-CAA protesters, with some linkages with ground-level protest organisers.
- That there was a co-ordinated call to carry out a ‘chakka jam’ in parts of northeast Delhi to coincide with the ‘Bharat Bandh’.
However, several pieces of the puzzle are missing even in this 17,000-page charge sheet that took over six months to prepare:
- The Delhi Police in their earlier charge sheets claimed that the 'conspiracy' was hatched in a meeting among Khalid Saifi, Tahir Hussain, and Umar Khalid at Shaheen Bagh on 8 January. The Quint's investigation revealed how there was no information whatsoever about Trump's visit to India then. The Delhi Police have now changed this date to 16/17 February. What explains this change in narrative?
- How a plan to facilitate protests or even carry out a ‘chakka jam’ becomes a conspiracy to carry out violence on non-Muslims is not clear.
- The WhatsApp groups examined by the police do reveal discussions on carrying out a ‘chakka jam’, but in none of the groups highlighted by the Delhi Police in the charge sheet, is violence being incited, planned or even condoned.
- The charge sheet ignores differences within the anti-CAA protesters. For instance, Sharjeel Imam “called off” the Shaheen Bagh protest a few weeks into it, but the sit-in continued until March. Even though the police tries to argue that Imam had control even after that, it remains true that Shaheen Bagh protesters had vocally distanced themselves from Imam after his speech regarding a road blockade in Assam had led to a controversy. So, contrary to what the charge sheet claims, activists from outside often didn’t have the kind of control over local protesters.
- There were differences, especially in the DPSG group, on whether there should be a blockade in northeast Delhi at all. However, instead of appreciating the context behind the debate, it seems like the police is picking on a few messages to tag people with the role of a conspirator.
- Similarly, there were also genuine debates on whether protests should be “secular” or “Muslim-centric” but the police presents the focus on the former as an effort to deceive. It is not clear why some parts of the WhatsApp chats are to be taken at face value and others are to be dismissed as an effort at deception.
- Two aspects that changed between December and February but have been left unaddressed. In December, the clashes were mostly between the police and anti-CAA protesters, be it near Jamia or Daryaganj or northeast Delhi. But in February, pro-CAA or pro-Hindutva activists also got involved. There is plenty evidence for this in the form of testimonies and videos.
- The second aspect is regarding the intervening period between December and February where there was a steady increase in pitch from the pro-CAA side as well – with statements by BJP leaders, like Anurag Thakur, Kapil Mishra, and Pravesh Verma, videos by Hindutva leaders like Narsinghanand Saraswati, the two attacks on anti-CAA protesters in Jamia and Shaheen Bagh by pro-CAA “gunmen” and finally Kapil Mishra and Ragini Tiwari’s appearances in northeast Delhi on 23 February. Considering that over two-thirds of those killed in the northeast Delhi violence were Muslims, this other strand cannot be left unaddressed.
The Sections Imposed Against the UAPA Accused Under FIR 59
The initial sections of the FIR were 147 (rioting), 148 (rioting, armed with deadly weapon), 149 (unlawful assembly), and 120b (criminal conspiracy). Later, several sections were added, including UAPA.
These are Section 109 (punishment for abetment), 114 (abettor present when offence is committed), 124A (sedition), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc), 186 (voluntarily obstructing public servant from discharging their duty), 201 (causing disappearance of evidence), 212 (harbouring offender), 295 (Injuring or defiling place of worship with intent to insult the religion of any class, 302 (murder), 307 (attempt to murder), 341 (wrongful restraint), 353 (assault or criminal force to deter public servant from discharge of his duty), 395 (dacoity), 419 (cheating by personation), 420 (Cheating and dishonestly inducing delivery of property), 427 (mischief causing damage to the amount of fifty rupees), 435 (mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees), 436 (mischief by fire or explosive substance with intent to destroy house, etc.), 452 (trespassing house after preparation to hurt, assault), 454 (lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment), 468 (forgery for purpose of cheating), 471 (whoever fraudulently or dishonestly uses as genuine any document or electronic record, which he knows or has reason to believe to be a forged), and 34 (common intention) of the Indian Penal Code.
Additionally, they were also booked for Sections 3 and 4 of the Prevention of Damage to Public Property Act, Sections 25 / 26 of Arms Act, 1959 and Sections 13 / 16 / 17 / 18 of the Unlawful Activities (Prevention) Act.