All terrorists are criminals but not all criminals are terrorists: Delhi HC

Notwithstanding the fact that the definition of ‘terrorist act’ in Unlawful Activities (Prevention) Act (UAPA) is “wide and even somewhat vague”, the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts that fall squarely within the definition of conventional offences, the Delhi High Court remarked on Tuesday.

A bench of Justice Siddharth Mridul and Justice Anup Jairam Bhanbhani said the word ‘terrorism’ or ‘terror’ has nowhere been defined in the UAPA.

Hence, the court must be careful in employing the definitional words and phrases used in section 15 (of the UAPA that defines ‘terrorist act') 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, the bench said.

The High Court’s observation came while granting regular bail to JNU students Natasha Narwal and Devangana Kalita, and Jamia Millia Islamia student Asif Iqbal Tanha, arrested in connection with the north-east Delhi riots.

UAPA’s origin

The ‘terrorist act’, including conspiracy and act preparatory to the commission of a terrorist act, were brought within the purview of UAPA by an amendment made in 2004, on the heels of Parliament repealing Prevention of Terrorism Act (POTA).

POTA’s precursor, the Terrorist & Disruptive Activities (Prevention) Act (TADA) was repealed in 1995.

The High Court said the phrase ‘terrorist act’ must get its colour and flavour from the problem of terrorism as was earlier addressed by the Parliament under TADA and POTA.

Defining ‘terrorism’

To understand the concept and construction of 'terrorism', the High Court referred to various judgments of the Supreme Court where the issue has already been dealt with.

“Terrorism is one of the manifestations of increased lawlessness and cult of violence... A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law,” the Supreme Court had said in Hitendra Vishnu Thakur versus State of Maharashtra case.

In the same judgment, the Supreme Court said, “Every ‘terrorist’ may be a criminal but every criminal cannot be given the label of a ‘terrorist’ only to set in motion the more stringent provisions of TADA.”

The High Court said, in its opinion, “The intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 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.”

“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 court cautioned.

It reminded that a sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision.

“Also, the more stringent a penal provision, the more strictly it must be construed,” the High Court remarked pointing at the use of the stringent provision under UAPA against the three students in the north-east Delhi riots case.

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Printable version | Aug 2, 2021 2:39:23 AM |

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