The High Court, while granting bail to Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha on Tuesday, gave the Delhi Police a dressing-down for “casually” invoking provisions of anti-terror laws against the three students who had protested against the enactment of the Citizenship (Amendment) Act (CAA).
Jawaharlal Nehru University students Ms. Kalita and Ms. Narwal, along with Jamia Millia Islamia Mr. Tanha, were arrested in connection with the northeast Delhi riots last year.
“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’,” a Bench of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani said.
“If such blurring gains traction, democracy would be in peril,” it said.
The High Court ruled that no offence under the anti-terror law — Unlawful Activities (Prevention) Act (UAPA) — is made out against any of the three students.
“The phrase ‘terrorist act’ cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC [Indian Penal Code],” the court said.
“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 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,” the High Court observed.
‘Right to protest sacrosanct’
Noting that protests against governmental and parliamentary actions were legitimate, the Bench said though such protests were expected to be peaceful and non-violent, it was not uncommon for protesters to push the limits permissible in law.
Citing the case of Ms. Kalita, the High Court observed, “Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, ‘chakka jams’, instigation of women protesters and other actions, to which the appellant (Ms. 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 as understood under the UAPA”.
Devangana Kalita’s case
Ms. Kalita has been named in four FIRs filed in connection with the northeast Delhi riots. She was arrested on May 23 last year. She has already got bail in three of the FIRs. However, a trial court here had denied her bail in connection with the FIR where the UAPA was invoked against her.
The prosecution case against her is that she, as part of a women’s rights group called Pinjra Tod, and other groups called the Delhi Protests Support Group, the Jamia Coordination Committee, Warriors, and ‘Auraton ka Inquilab’ participated in a ‘larger conspiracy’ which led to violence and rioting.
The court, however, remarked that, “There is absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation, that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 of the UAPA”.
“Surely the right to protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of the UAPA, unless, of course, the ingredients of the offences under Sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in chargesheet,” it added.
Natasha Narwal’s case
Ms. Narwal has three separate FIRs lodged against her arising from her alleged involvement with the protests against the CAA and the National Register of Citizens ((NRC). She, too, was arrested on May 23 last year.
The case cited by the prosecution against her is that she was involved in instigating the local population in certain Muslim-dominated areas in Delhi, particularly women, to protest against the CAA and the exercise undertaken by the Central government for creating an NRC, by allegedly seeking to incite feelings of persecution.
The High Court remarked that “allegations relating to inflammatory speeches, organising of ‘chakka jam’, instigating women to protest and to stockpile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests”.
“But we can discern no specific or particularised allegation, much less any material to beat out the allegation, that the appellant [Ms. Narwal] incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA,” it said.
Asif Iqbal Tanha’s case
Mr. Tanha was first arrested on May 19 last year in connection with the UAPA case. At the time of his arrest, he was already in judicial custody in another case registered in connection with the anti-CAA protest in December 2019.
While he has already been granted bail in the earlier case, he was denied bail in the UAPA case by a trial court here on October 26, 2020.
According to the prosecution, Mr. Tanha is one of the ‘masterminds’ and one of the main conspirators as well as instigators behind the riots that happened in northeast Delhi last year.
The prosecution repeatedly urged that what was contemplated and, in fact, brought to fruition was not a “typical protest” but an “aggravated protest” which was intended to disrupt the life of the community in 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 chargesheet will not convince us otherwise,” the Bench said pointing to “complete lack of any specific, particularised, factual allegations” that would make-out the ingredients of the offences under UAPA.
“In fact, upon a closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations,” the High Court highlighted.