17, Jun 2021 | Teesta Setalvad
June 15 2021 brought us the three judgements granting regular bail to three young activist academics, Asif Tanha, Devangana Kalita and Natasha Narwal, in the infamous cases alleging “conspiracy” into the February 2020 targeted violence in North East Delhi. The significance of the substantively reasoned orders will not merely grant these three persons their freedom (eventually!*) but has laid down a just and carefully creative understanding of “offences” deliberately construed by the State as acts of terror under a draconian statute.
The Unlawful Activities (Prevention) Act (UAPA), which after amendments made in 2004 and 2008, introduced acts of terrorism, funding terrorist activity and conspiracy to commit acts of terror into its ambit (the law dates back to the 1960s), has been regularly abused since then, often to incarcerate politically inconvenient voices, more especially so by the executive in the past seven years.
To contextualise these particular cases, we need to re-visit Delhi, and India of December 2019-early 2020 before the Covid-19 pandemic paralysed all existence. In the background of the regime’s conduct post 2016, with the young student fraternity at Hyderabad Central University (HCU-institutional murder of Rohith Vemula) and targeting of the Jawaharlal Nehru University (JNU), the hasty passage of the unconstitutional Citizenship Amendment Act (CAA) 2019 during the first six months of this government’s second term, unleashed a series of protests emanating first out of the Jamia Milia Islamia university (JMI), then flowering into Shaheen Bagh and several other protest sites in the north eastern part of Delhi. Student and community leaders led them, the language was both assertive and creative and it was India’s Muslim citizenry that, fearing disenfranchisement and an existential threat, was exercising its fundamental right to peacefully protest. The political vilification of protesters and dissent since 2016 culminated in violence against and the jailing and incarceration of student leaders (recall vile terms like tukde tukde gang) and by 2019-2020 this abuse had turned violent “Goli maro salon ko”, and directed against its main ideological enemy, the Muslim. All out efforts to provoke violence and win the Delhi state elections in early 2020 did not quite work and recorded speeches of influential professional hate-mongers escaped the long arm of the law.
Then came the sudden lockdown and the Delhi police, guided by its political masters constructed a case against some of the key young leadership among the protesters. Initially criminal law sections were applied under which almost all of them obtained bail. Undeterred, the draconian sections 15, (terrorist act), 17 (punishment for raising funds) and/or 18 (conspiracy) of the UAPA were thereafter applied. All these sections form part of Chapter 4 of the Act dealing with Terrorist activities. The National Investigating Agency (NIA) thereafter stepped in, FIRs were filed (in this case FIR Nos 59/2020) constructing a theory behind the “aggravated protests”, and bail was thereafter refused. Apart from these three activists, another 18 remain incarcerated under similar charges and offences.
Before I get into the judgements themselves, a word for the intrepid legal team that ran the defence in these cases. Senior Advocate Siddharth Aggarwal with Advocate Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhari, Nitika Khaitan appeared for Tanha. Advocates Adit S Pujari, Tusharika Mattoo, Kunal Negi appeared for Kalita and Narwal. In cases such as these, the physical and emotional toll on lawyers is immense. Saluts.
Justices Siddharth Mridul and Bhambhani, while granting bail to three student leaders have applied a thoroughness of both, reasoning and creativity. The legal reasoning outlined in the judgement granting bail to Asif Iqbal Tanha (the lead judgement) begins by tracing the legislative history of the UAPA. Under Article 246 of the Constitution, that demarcates India’s federal structure, the judgement outlines that under List 1 of the VIIth Schedule, the “Union List” demarcates the legal right given to Indian Parliament to legislate on laws contained in subjects under that list. Entries 1 and 93 under List 1 of the VIIth Schedule relates to the “Defence of India”. List-II in the VIIth Schedule relates to the State List List-III to the Concurrent List. Entry-2 of the State List deals with Public Order. Making detailed explorations and distinctions between the two, the Court holds that since Parliament could not pass any law related to ‘law and order’, ‘public order’ issues, the legislative competence and intent of the Indian 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 had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. The Court states,
“The purpose of referring to Entry 1 of List-I (Defence of India) and Entry 2 of List-II (Public Order) is to take notice of the fact that since UAPA is a central legislation, it would have been enacted in relation to the ‘defence of India’ as contra distinct from ‘public order’, since it must be presumed that when the Parliament enacted the UAPA, it was acting within the scope of its powers under the constitutional scheme and was therefore enacting a legislation relating to a matter that was within its competence under Article 246 and the Seventh Schedule of the Constitution.
Absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport 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) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.”
At the outset then the verdicts lay out a stringent provision that will need to be followed by law enforcement in all future cases: that the UAPA and its provisions can only be applied in matters pertaining to the defence of India and the stability of the nation. Exploring the offences that have been laid at the door of these activists, the Judgement in Asif’s case states,
“In our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made”, said the court while granting bail to Asif Tanha.”
The allegation against Asif was that he engaged in protests, chakkajam, to cause complete stoppage of vehicles and blockade of roads, so that supplies and services to the people of Delhi are adversely affected; and also to spread fear and cause riots. But the court held that there was no allegation in the subject charge-sheet that he was leading the co-conspirators in these acts. He was not even the group administrator of any of the WhatsApp groups, which, the allegation goes, were formed “with the sinister aim of organising a protest against the CAA that would cause havoc amongst the ordinary citizenry”. The judgement states that there is only one “specific, particular and overt act” that Asif is stated to have committed, namely that he handed over a SIM card given to him by someone else, to a co-conspirator, which, it is further alleged, was used by the said co-conspirator to send messages on a WhatsApp group. “Other than this one action that is specifically attributed to the appellant, this court is unable to discern any other act or omission attributed specifically to the appellant”, said the HC.
No arms, ammunitions or other weapons were discovered from Asif. The government had argued that even the likelihood that Asif’s acts or omissions may threaten the nation are an offence under the UAPA. On this aspect of ‘likelihood’ of threat and terror, the Court stated,
“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 situate in the heart of Delhi.”
“It has been a recurrent theme, repeatedly urged by the State, 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.”
Thereafter, the court proceeds with particularity and minuteness to meticulously delve into the evolution of stringent provisions in India’s anti-terror laws to hold that laws that involve more stringent provisions of punishment and prevent bail, need to be both narrowly and more strictly applied when it comes to defining an offence. Analysing a slew of judgements and jurisprudence emerging over past decades the Court explores the question,
“What however, is ‘terrorism’ or ‘terror’, from which the meaning of ‘terrorist act’ and other related words may be derived?”
Interestingly drawing a jurisprudential difference between law and order, public order and security of state the judges hark back to the judgement in Ram Manohar Lohia (Dr) vs. State of Bihar:
“55. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”
Delving deep into this question and making sharp and nuanced observations on the question, the Court warns that laws with stringent punishments need narrow and specific, particular applications in each case, to both justify and attract their use. At Para 40 of Asif’s judgement, the Court has observed,
“Another 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.”
It is through this deductive reasoning in chaining down the alleged offences detailed in the charge sheet related to these three student activists that the Court both deals and does away with the stringent provisions for bail under UAPA outlined in Section 45 Section 43 (D) (5). The Court then proceeds to deal with the applications for bail under ordinary criminal law.
Thereafter, the Court deals with two significant recent verdicts of the Supreme Court related to bail under the UAPA. The first is the NIA v/s Zahoor Ahmad Shah Watali of 2019 where the interpretation led to the view that delving into the merits or demerits of the evidence at the stage of deciding a bail plea is proscribed. Developing this further, the Delhi High Court holds that,
“The decision of the Hon’ble Supreme Court in Watali (supra) proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea; and as a sequitur, for assessing the prima facie veracity of the accusations, the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material placed with the subject charge-sheet. To bring its case within Chapter IV of the UAPA the State must therefore, without calling upon the court to draw inferences and conclusions, show that the accusations made against the appellant prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.”
“In this case, we find that the State’s attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance.”
“61. Once we are of the opinion, as we are in the present case, that there are no reasonable grounds for believing that the accusations against the appellant are prima facie true, the Proviso to section 43D(5) would not apply; and we must therefore fall back upon the general principles of grant or denial of bail to an accused person charged with certain offences.”
This interpretation of how and where terrorism and acts of terror should be construed has the potential to constrain and limit wild and unsubstantiated allegations in future.
The Right to Protest
It is on the fundamental freedoms granted under Article 19(1) (a) and (b) of the Constitution that this judgement, after many decades, makes a breakthrough. Again, as on other points of contention in this case, a treasure trove of case law has been cited to both interpret and develop the issue of the right to protest. Judgements like those in Mazdoor Kisan Shakti Sangathan vs Union of India and Anr ((2018) 17 SCC 324.), Babulal Parate v. State of Maharashtra [AIR 1961 SC 884], Kameshwar Prasad v. State of Bihar [AIR 1962 SC 1166], the Constitution Bench judgment, Himat Lal K. Shah v. Commr of Police [(1973) 1 SCC 227] and the Ramlila Maidan Incident, In re [(2012) 5 SCC 1] have all been cited not just uphold this right but hold that such protests are integral to a vibrant, functioning democracy. Citizens and groups have not just the right to peacefully protest. The State cannot put unreasonable curbs or the spirit and need for such protests will be denied. Needless to say, no one has the right to have violent protests. Acts of terror and terrorism are intended to target the integrity of India and destabilise the state. Protests in the heart of the capital, moreover protests that were not outlawed or banned, even if they become obstructive or violent do not amount to terrorism. Those who indulge in or provoke violence can of course be tried under the Penal Code but not under UAPA.
There is a 2021 judgement of the Supreme Court in the Najeeb Case (Union of India v/s K.A. Najeeb, 2021) in which the Supreme Court had held that a person jailed for several years under UAPA cannot be shorn of his fundamental rights. The right to time bound justice through a speedy trial is a fundamental right under Article 21. Hence, the under trial is therefore entitled to be released on bail if the trial is likely to take very long. In that case, the accused had been in jail for 5 years and the maximum punishment he could have been awarded would have been 8 years. The therefore Court released him on bail. In the Delhi case, the State argued that the accused were in jail for only one year and thus even according to Najeeb’s case there had not been prolonged incarceration. The Delhi High Court was clear,
“Should this court wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated, before it steps in and wakes-up to such violation? We hardly think that that would be the desirable course of action. In our view the court must exercise foresight and see that trial in the subject charge sheet will not see conclusion for many-many years to come; which warrants, nay invites, the application of the principles laid down by the Hon’ble Supreme Court in K.A. Najeeb.”
In the separate judgements granting bail to Devangana Kalita, the Delhi High Court held that Kalita was a member of certain women’s rights organisations and other groups, and she did participate and help organise protests against the CAA and the NRC in Delhi. But the right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1)(b) of our Constitution, and surely the right to protest is not outlawed and cannot be termed as a “terrorist act” within the meaning of the UAPA.
The court, in clear language and has ruled that, “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 (terrorist act), 17 (punishment for raising funds) and/or 18 (conspiracy) of the UAPA.
“The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions”, opined the HC. Even if Kalita did go ahead and we assume that she made inflammatory speeches, organised chakka jam and instigated women protesters (which the state has alleged), “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”, held the court.
In the third judgement granting bail to Natasha Narwal, the Delhi HC said that “no specific, particularised or definite act is attributed to her”, apart from the admitted fact that she took part in the anti CAA protests. The Bench perused the charge sheet and all the materials and said that the allegations made against her are not even borne-out from the material on which they are based. The court said,
“The State cannot thwart grant of bail merely by confusing issues.”
Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, is just evidence that she participated in protests and not incited violence, or committed a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA. These words are quote worthy:
“The line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mind-set gains traction, it would be a sad day for democracy”.
The case of student activist, Natasha Narwal is particularly poignant. Arrested in May 2020, Additional Sessions Judge, Amitabh Rawat had refused her bail holding, that allegations against her were prima facie true (that participating in protests that including blocking of roads was a “terrorist act”) on January 29, 2021. The appeal against this was pending Orders in the Delhi High Court for months when her father, scientist and intellectual Mahavir Narwal, fell ill and succumbed to Covid-19 in May 2021. She was finally given interim bail on May 10, 2021 for three weeks after his death, not being able to meet or see him when he was alive.
The cases of student activists being jailed under UAPA as punishment by a vindictive regime intolerant of democratic dissent and protest has again the spotlighted the case of bad laws which have a potential for blatant misuse. The time is ripe to call for their repeal.
Apart from the UAPA, stringent penal provisions like the section of the IPC on Sedition (124A of the IPC) and laws like the Jammu & Kashmir Public Safety Act (1978) & National Security Act (NSA, 1980) that allow detention of up to two years without trial.
The decades’ long history of the ping-pong as it were between the concentration of state power and people’s assertion of fundamental freedoms (speech, opinion, agitation, organisation) has resulted in a varied jurisprudence on the issue. Conventional penal laws that deal with ‘normal crimes’, to date, contain controversial provisions like section 124A of the IPC that is almost always is attracted or applied to stifle independent views, the “crime” of sedition. India has had 17 governments since it became independent, but none have repealed this section of the law that has been read down in a slew of judgements over 75 years.
Constitutional courts, or all courts, are the critical institutions that balance he overarching power of the state armed with its police and other law enforcement agencies. The curbing of fundamental freedoms, arrests of activists and civil society members protesting policy moves by the executive need to be urgently addressed by a widespread campaign, cutting across civil society and political lines. The Delhi High Court judgement(s) provide another window of opportunity. The next step surely must be a rigorous push for a repeal in these statutes.
Bad laws can be misused by even good governments. Under problematic ones there is a virality of abuse.
(*Till late evening of June 16, the obdurate conduct of the Delhi Police, that reports directly to the Ministry of Home Affairs in the central government, had ensured that the detainees were not released. On June 17, the trial court finally ordered immediate release of all three student activists.)