Ishika Garg

In this piece the author discusses how the Delhi High Court draws a line between the right to dissent and terrorist acts. To this effect, she analyses the Delhi HC’s treatment of the objectives of the UAPA and how that contextualizes the definition of a ‘terrorist act’ which must be established before attracting the austere bail provisions thereof.

Introduction

The Delhi High Court, on June 15, 2021, granted bail to Asif Iqbal Tanha and, Pinjra Tod activists Natasha Narwal and Devangana Kalita in the north-east Delhi riots case. They had been detained in judicial custody for over a year on account of charges under Sections 16 (punishment for terrorist acts), 17 (punishment for raising funds for terrorist acts) and, 18 (punishment for conspiracy) of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The allegations against the 3 accused comprise of participation in a purported ‘conspiracy’ behind anti-CAA protests which has been claimed to have incited riots and violence lasting three days in February, 2020. The riots led to 53 deaths, over 700 people injured and more than 1,800 arrested. Tanha has been alleged to have mobilized Muslims to participate in the protests and cause riots on communal lines. Narwal and Kalita have been accused of participating in several meetings in the run up to the protests and then mobilizing women and children to engage in the protests to cause riots.

The bail was granted after the Court observed that the allegations did not prima facie constitute the alleged offences under the UAPA, thereby rendering inapplicable Section 43D(5), which makes the abovementioned offences non-bailable. Subsequently, the Supreme Court of India observed that the High Court has diluted the provisions of the UAPA in a bail application and therefore it shall not be treated as a precedent until further orders from the Apex Court. The Court has, however, not stated the reasons behind its decision apart from accepting the arguments put forth by the Solicitor General Tushar Mehta and that the bail orders discuss the law. Moreover, the direction to erode the precedential value of Delhi High Court’s judgement, without staying or reversing the same, has no legal basis in the Constitution or Indian jurisprudence.

This blog post aims to analyze the Delhi High Court’s bail order as well as its judgement in light of the Supreme Court’s observation and potential areas susceptible to attack in future hearings. It argues that there has been no dilution of the provisions of the UAPA by High Court, and the Supreme Court’s decision to not allow the case to be treated as a precedent is hence misplaced. The first part of the post deals with the Court’s analysis of the objectives of the UAPA; the second discusses the definition of ‘terrorist act’ in the UAPA considering Supreme Court precedents; the third part studies Section 43D(5) of the UAPA and its applicability in the instant case and; the fourth part concerns the right to protest as a fundamental right in Indian democracy.

Objective of the UAPA

The effect of bail is to release the accused from judicial custody and entrust them to the custody of their sureties who are bound to produce the accused at trial. Courts are required to assess the prime facie veracity of accusations without dissecting the evidence at this stage by considering the factual matrix. This implies that courts are required to evaluate whether the evidence in the charge-sheet implicates the accused for the offences falling within the ambit of the provisions sought by prosecution. Moreover, there exists no rule prohibiting courts from interpreting the provisions of law (Chapter IV in the instant case) that the accused has been charged with in order to grant bail. The Delhi High Court has rightly discussed those provisions in its judgement with the help of precedents leading to no judicial overreach. By way of arguendo, even if it is conceded that a court cannot interpret statutory provisions in a bail application, it would still be required to use precedent for determining whether the accusations fall within the ambit of the said law.

The factors to be considered in a bail plea, as set out by the Supreme Court include, inter alia, the nature of the accusation and the severity of the punishment. The Court has observed that a higher punishment due to the heinous nature of the offence warrants a more probable rejection of bail. Moreover, bail is the norm, not an exception. In order to ascertain the nature of accusations, it is necessary to establish the objective of underlying laws, i.e., the UAPA in the instant case. The aim of the UAPA, as observed by the Apex Court, is to deal with terrorist activities that are committed with the intent to threaten the unity, integrity, security or sovereignty of India, or to strike terror in the hearts of people, or relate to the secession of the territory of India. The Supreme Court itself has held, a decade ago, that the UAPA applies to matters related to the defence of India. This is because for the UAPA to be within the legislative competence of the Parliament, it should fall under Entry-1 of List-I of the Seventh Schedule of the Constitution which pertains to the defence of India. This implies that in analyzing the object of the UAPA, the Delhi High Court has applied precedent as opposed to diluting the law in a bail plea.

Defining ‘Terrorist Act’

The Solicitor General of India (‘SG’) pleaded in the Supreme Court that Section 15 of the UAPA has been interpreted by the High Court beyond its jurisdiction in a bail plea. According to the SG, the High Court is not entitled to do so since the constitutionality of this provision was not challenged in the instant case. Contrarily, it is necessary to examine the scope of provisions in a bail plea in order to assess whether the evidence prima facie implicates the accused. The definition of ‘terrorist act’ given in the UAPA clearly says that it comprises acts committed ‘by using bombs, dynamite or explosive or inflammable substances or firearms or poisonous gases or any other substances (biological, radioactive, nuclear or otherwise) of a hazardous nature’. The said protests in which the 3 accused participated did not involve any such substances. It is worth mentioning here that the accused have accepted their presence at the anti-CAA protests. However, they have denied participation in the communal riots that followed. Moreover, there is no evidence in the charge-sheet filed by the Delhi police to corroborate the allegations levelled against the accused that they were involved in the communal riots.

The definition of ‘unlawful activities’ under Section 2(1)(o) of the UAPA includes acts of speech which could have been applied to the impugned protests. However, Section 15 does not contain the said phrase, presence of which could bring the accused within its fold. The offences under Section 16, 17, 18 in Chapter IV are non-bailable by virtue of Section 43D(5). Since the participation of accused in the said protests cannot fall within this Chapter as per literal interpretation of provisions therein, the special prohibition on bail under Section 43D(5) cannot apply to the instant case.

Since the Delhi High Court has already discussed several definitions of ‘terrorist’ acts interpreted over the years, the author has chosen a route not taken by the Court to reach a conclusion. By adopting the rule of literal interpretation of the text of law, it is concluded that the activities of the accused do not fall within the definition of ‘terrorist act’ and as such do not attract Section 43D(5). Nevertheless, the High Court, relying on precedents interpreting ‘terrorist act’ under earlier legislations, has not substantially differentiated its approach from literal interpretation. In light of the abovementioned reasons, it is found that the High Court has not ventured beyond its jurisdiction and has rightly granted bail.

Section 43D(5) of the UAPA

A simple reading of the provision says that an accused who is in custody for charges under Chapters IV and VI of the UAPA shall not be granted bail by a court unless the Public Prosecutor has been given a chance to present their case. A second reading of the provision would highlight the proviso to the Section which says that the accused shall not be granted bail if the Court finds the allegations leveled against such person prima facie true. This clearly means that the issuance of a bail order is contingent on the Courts’ opinion regarding the prima facie truth of the allegations.

Furthermore, the Supreme Court has observed in the case of Union of India v. K.A. Najeeb that Section 43D(5) of the UAPA provides a ground for refusal of bail in addition to the well-settled factors required to be considered in a bail plea. These considerations include the apprehension of flight risk, evidence tampering, witness intimidation, careful regard to the genuineness of the prosecution, the character, behavior, means, position and standing of the accused, and the likelihood of repetition of the offence. In another case, the apex Court has held that the necessity to hold someone in custody pending trial, in order to ensure their presence at the trial, is the operative test for the grant of bail.

In the instant case, the Court has not found prima facie truth in the allegations against the 3 accused. This means that the contingency required to restrict grant of bail has not been fulfilled. Additionally, the Court has applied general principles of bail and the test of necessity, keeping in mind the behavior of the accused and their cooperation throughout the process. Therefore, the High Court has again relied on precedent without interpreting the provisions themselves.

The Right to Protest

The right to protest is an integral part of fundamental right to speech and peaceful assembly guaranteed under Articles 19(1)(a) and (b) of the Constitution, respectively, subject to reasonable restrictions. The Supreme Court of India has recently observed that legitimate dissent is a distinguishable feature of democracy irrespective of the validity of issues raised. This implies that the accused cannot be detained and charged under such rigid provisions for protesting against a legislation. The Delhi High Court has found no specific allegations in the charge-sheet which could fall within the ambit of the UAPA. Since the said offences, arising out of protests against the Citizenship (Amendment) Act, 2019, form subject matter of other FIRs whereunder the accused have already been granted bail, the High Court has allowed bail in absence of apprehension of flight risk, evidence tampering and witness intimidation. Moreover, the High Court has applied and upheld the fundamental rights of the accused. Since these rights cannot be neglected by the courts even when not explicitly pleaded, especially in a case emanating from participation in protests, it cannot be said that the High Court’s observations constitute a dilution of the UAPA.

Conclusion

The Delhi High Court has remarked that the State has blurred the line between ‘right to protest’ and ‘terrorist act’ in its anxiety to suppress dissent. In doing so, it has not diluted the law in any way. This is because the Court has essentially stuck to the ordinary procedure of granting bail by interpreting the requisite provisions of law in order to decide whether the bail can be granted. As per the existing precedents, the said protests cannot prima facie said to be terrorist acts due to the absence of evidence attributing to the accused, intention to threaten the unity of India or terrorize people by use of hazardous material. This makes Section 43D(5) of the UAPA inapplicable. Further, it has been noted that the accused have been cooperative in judicial custody for a year and the High Court has noted that the proceedings involving depositions of witnesses will take a long time in light of the pandemic. Apart from opining that terrorist acts cannot be equated with usual law and order issues falling within the offences under Indian Penal Code, 1860, the Delhi High Court has only used Supreme Court precedents to temper the application of the UAPA. Moreover, it is ordinary for courts to discuss the law in a bail plea to decide if the evidence points towards the commission of the alleged crime. Therefore, the Supreme Court’s observation is misplaced. The decision of the Apex Court to not treat the judgement as a precedent is legally erroneous and is an unlawful interference in the judicial powers of the High Court.

Ishika is a second year law student at the National Academy of Legal Studies & Research University, Hyderabad.