Bail to student activists a ray of hope for many behind bars under UAPA, but provisions are a stumbling block


The grant of bail by the Delhi High Court to two JNU students, Natasha Narwal and Devangana Kalita, and a Jamia Millia Islamia student, Asif Iqbal Tanha, implicated by Delhi Police for alleged ‘larger conspiracy’ in the 2019 Delhi riots, is a shot in the arm for those booked by the State under draconian laws such as Unlawful Activities (Prevention) Act (UAPA) merely for staging protests against the government or expressing dissent.

The UAPA, in particular, under which scores of individuals including those accused in the Bhima Koregaon case have been incarcerated for years, has stringent provisions that bar courts from awarding bail if “from a perusal of the case diary or the charge sheet, there are reasonable grounds to believe that the accusation against a person is prima facie true”.

The trial courts, more often than not, tend to agree with the prosecution on the ‘prima facie truth’ of the case, leaving the accused stranded in jail for a prolonged period of time without relief.

In the Delhi riots case, the prosecution had filed a chargesheet containing a staggering 19,000 pages. That the Delhi HC parsed through such a voluminous document and came to the conclusion that no prima facie case was made against the three student activists is in itself remarkable.

Observations made by Delhi HC

The Delhi High Court set aside the trial court orders denying bail to the student activists by terming as “somewhat vague” the definition of ”terrorist act” under the UAPA and warning against its use in a “cavalier manner”.

In three separate judgments of 113, 83 and 72 pages, the Delhi HC said that although the definition of ‘terrorist act’ in section 15 of the stringent Unlawful Activities (Prevention) Act (UAPA) is wide and somewhat vague, it must partake the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be applied in a “cavalier manner” to criminal acts that squarely fall under the IPC.

“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.

“We are constrained to express, that 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” which would be in peril, it said, adding that there was nothing to show the possible commission of a terrorist act.

The HC said there is absolutely nothing in the charge sheet, by way of any specific allegation to show the possible commission of a ‘terrorist act’ within section 15 UAPA, an act of ‘raising funds’ to commit a terrorist act under section 17 and an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within section 18 UAPA.

It noted that the charge sheet was filed on September 16, 2020, and there are 740 prosecution witnesses and the trial is yet to commence which is unlikely to begin soon in view of the truncated functioning of courts by reason of the prevailing second wave of the COVID-19 pandemic.

Regarding Natasha Narwal and Devangana Kalita, the HC said that considering their educational background, profile and position in life, it sees no reason to suspect or apprehend that they are either a flight risk or that they will indulge in evidence tampering, or witness intimidation, or will otherwise impede the trial in any way.

It said no specific act is attributed to Natasha Narwal, apart from the admitted fact that she engaged herself in organising anti-Citizenship (Amendment) Act (CAA) and anti-National Register of Citizens (NRC) protests.

It said allegations relating to inflammatory speeches, organising of ”chakka jaam”, instigating women to protest and to stock-pile various articles and other similar allegations, at worst, are evidence that she participated in organising protests, but there is no specific allegation that she incited violence, what to talk of committing a terrorist act or a conspiracy to commit it.

Regarding Devangana Kalita, it noted that as a member of certain women’s rights organisations and other groups, she did participate and help organise protests against the CAA and the NRC in Delhi and said the right to protest, which is a fundamental right to assemble peaceably and without arms, cannot be termed as a ‘terrorist act’ within the meaning of the UAPA.

“Even if we assume…inflammatory speeches, chakka jams, instigation of women protesters and other actions, to which Kalita 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…under the UAPA,” the HC said.

Order hailed by legal experts

Several legal experts have hailed the Delhi HC order.

The court has upheld the right to protest and the right to dissent, former Supreme Court judge Deepak Gupta said. According to Gupta, the Asif Iqbal Tanha judgment was the most important of the three that were passed by the Delhi High Court on Tuesday.“The Asif Iqbal judgment is going to be a path-breaking one. It sets out in detail what all comed under the UAPA and what is an act of terrorism. Every crime is not a terrorist crime,” he said.

Former Additional Solicitor General and activist lawyer Indira Jaising, said that the judgement is an appropriate interpretation of the object and purpose of the Unlawful Activities (Prevention) Act and that it will benefit many of those charged under that law.

“This government knows how to misuse laws to quash protests, which is a democratic right. The three judgements restores the right of protest to its proper place,” Jaising said.

Activist lawyer Vrinda Grover has said the bail orders are a scathing indictment of misuse of power and law by the State and its agencies. She said the order slices through the bogey of the state’s case, which without a shred of evidence invoked UAPA and described it as a terrorist act, which in full public view were “non-violent assembly and protests in Delhi.”

About the three separate verdicts in which the action of Delhi Police came under severe criticism, she said that the State has repeatedly invoked the stringent anti-terror law against those challenging the policy and actions of the state and used criminal law to suppress fundamental freedoms, including the freedom of assembly, free speech and expression, and personal liberty.

“The High Court reaffirms the right to protest even on issues that are unpalatable to the state agenda. The Delhi High Court bail orders are a scathing indictment of misuse of power and law by the state and its agencies,” she added.

Senior Advocate Geeta Luthra said that the State has to ensure that laws which have been made to curb terrorism are not invoked so lightly. “Unless we have people who differ in opinion, how will you make your democracy more vibrant?” she asked.

Further, she opined that the struggle of human rights has been disbalanced between laws to protect the state and the rights of private individuals throughout the world but the judgement upheld human rights and liberty, which are citadel for democracy. “It is a wonderful judgement. The more one lauds the judgements, the lesser it would be. What has been said in the judgement is also equally important that we should not protest for terrorist activity,” she said, extolling the order of the court.

UAPA’s provisions a stumbling block

There is no doubt that the Delhi High Court orders have dealt a blow to the agencies that invoke the UAPA in a cavalier manner and comes as a ray of hope to many who are languishing in jail without trials or under trial.

However, the orders do not mean the problems inherent in the UAPA have been done away with.

Even after these orders, awarding bail will remain highly discretionary and will depend on the particular judge’s ability to analyse the case diary and charge sheet and call out the police for a lack of evidence that establishes prima facie truth.

Further, given the profound impact of the orders on the UAPA, the Delhi Police has already moved the Supreme Court against them. One of the arguments that it may make is that Delhi High Court had undertaken an exercise of excessively analysing evidence that goes beyond the measures necessary to establish the prima facie truth, something that the law does not allow.

Incidentally, a Delhi court on Wednesday deferred its order on the release of Devangana, Natasha and Asif Iqbal Tanha citing a “heavy board” of other bail applications listed before it.

Additional Sessions Judge at Karkardooma Courts Revinder Bedi stated that the court will pass its order tomorrow at 11 am, as per a Bar & Bench report.

The three had approached the lower court on Tuesday after the Delhi HC granted them bail. The judge had deferred passing an order for immediate release for want for verification of their addresses and sureties. It had sought a verification report from Delhi Police while posting the case for Wednesday.

When the matter came up on Wednesday, the Investigating Officer (IO) sought more time to conduct verification of addresses of the accused and their sureties.

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