On Tuesday, 15 June, the Delhi High Court granted bail to three Unlawful Activities (Prevention) Act accused – Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha – in the Delhi riots case.
Kalita, Narwal, and Tanha, who were already granted bail in other FIRs pertaining to offences under the Indian Penal Code (IPC), were still languishing in jail due to the infamous FIR 59 – a complaint that slapped them with UAPA charges and termed them “terror accused.”
However, now they will finally be released. The Bench of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani categorically noted that the state failed to produce evidence to show that the three accused prima facie committed a terror offence as contemplated in Sections 15, 17, or 18 of the UAPA.
The impact of the judgment is not just restricted to the facts of the present case. While reiterating the essence of terrorism as laid down by the Supreme Court in various judgments, the court held that terrorism can’t be conflated with “law and order problems” or “violent protests”. The UAPA is a stringent anti-terror law, and thus, its provisions must be interpreted more strictly and narrowly, as compared to other conventional penal offences.
Protests Are Not Terrorism
The court has highlighted that there’s a fundamental difference between protests and acts of terror. Even when the protests turn violent, it would prima facie be seen as a “law and order” issue and not as terrorism. The court even expressed its concern on the growing trend of invoking the UAPA against protesters:
“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.”Delhi High Court
In order to differentiate the heinous offence of terrorism from “conventional offences” covered under the Indian Penal Code, the court relied upon various judgments of the Supreme Court where “terrorism” is defined.
a. In Hitendra Vishnu Thakur case, while calling terrorism an “abnormal phenomenon”, the Supreme Court said that the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order.
b. In PUCL v Union of India, the apex court termed terrorism as acts that challenge the whole nation. Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, raze the constitutional principles, and create a psyche of fear.
Therefore, terrorism is a serious offence against the sovereignty and integrity of India and can’t be conflated with protests. Expanding the interpretation of UAPA to protests against the government’s policies would amount to a breach of fundamental right to peaceful assembly guaranteed under Article 19(1)(b) of the Constitution.
UAPA Must Be Strictly & Narrowly Interpreted
The Delhi High Court categorically highlighted that a law as stringent as the UAPA shall be strictly and narrowly interpreted by the courts. This reasoning is based on an established principle of criminal justice, which says “more stringent a penal provision, the more strictly it must be construed”. In other words, where a provision of law that contains serious penal consequences is vague or widely worded, such provision must be construed narrowly. Not doing so would result in extending the law to those who the Legislature never intended to fall under its ambit, thus, violating the constitutional framework.
The court was quick to point out that the definition of ‘terrorist act’ in Section 15 of the UAPA is wide and even somewhat vague. Therefore, while interpreting it, the courts must keep in mind the “essential characteristics of terrorism” to prevent the application of UAPA to offences, which are squarely covered by IPC. Providing “literal” or “expansive” interpretation to the UAPA would not only violate the constitutional framework, but also “trivialise” a heinous offence.
In order to understand the “essential characteristic of terrorism,” the court turned to List 1 of Schedule 7 of the Constitutions which enlists items on which the Union government can legislate. After taking note of the fact that UAPA was enacted by the Parliament under entry 93 in the Union list (defence of India), the court concluded that the legislative intent was to classify terrorism as an offence against the defence of India, nothing more nothing less.
“It was not the intent, nor 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, since such conventional matters would have fallen within Entry 1 of List-II (State List).”Delhi High Court
Therefore, protests and other acts, which cause the “law and order” issue will not fall under the “essential character of terrorism,” as they are not acts against the “defence of India.”
UAPA Bail Provision Won't Apply to Pinjra Tod Protesters
Since the act of protesting can’t be conflated with the act of terror, the three accused who are primarily charged for being present at the site of the protests, can’t be subjected to the stringent provisions of the UAPA.
Throughout the proceedings, the state heavily relied upon the Supreme Court’s judgment in the NIA v Zahoor Ahmad Shah Watali to argue that courts can’t apply regular bail provision under the Criminal Procedure Code in UAPA cases. As per the state, the bail applications of Pinjra Tod protesters should be dealt with under the stringent section 43D of UAPA, which provides additional restrictions on bail.
In the Watali judgment, the apex court had ruled that while adjudicating bail under section 43D of UAPA, the courts need not go into the admissibility of the evidence, and must base their reasoning on the evidence produced by the police in their report.
The court, however, reasoned that both the Watali judgment and section 43D are inapplicable to the consideration of bail in the present case as the state failed to impute “specific, particularised or definite” act to any of the three protesters, which would warrant a prima facie conclusion that they committed an offence under UAPA.
“... 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.”Delhi High Court
This has set a significant precedent for the high courts and trial courts to follow while adjudicating bail applications filed by UAPA accused. The courts have to follow the following two steps:
- Whether the alleged act of the accused would fit into the “essential character of terrorism” under Section 15 of the UAPA, based on the evidence produced by the prosecution.
- If not, the bail application must be dealt with as per regular bail provision under the Criminal Procedure Code instead of Section 43D of the UAPA.
Courts Can't Be Mute Spectators
The principles of adjudication upheld and reiterated by the Delhi High Court while granting bail to Pinjra Tod protesters will have an impact far and beyond the present case.
The judgment has highlighted the important role of the courts to ensure that the due process rights of the accused enshrined in criminal justice are not thwarted by ambiguously worded hyper-punitive laws. Rather, the protection of those rights become even more important when the law invoked against the accused has grave penal consequences.
The Delhi High Court’s order has also set the precedent for courts to privilege strict scrutiny of evidence over deference to the state’s rhetorics. The UAPA is being increasingly used to stifle free speech and incarcerate dissent. The role of an independent judiciary is to sense the pulse of these politically motivated cases to ensure that the UAPA is not allowed to thwart democratic values and constitutional framework.