Granting bail to Asif Iqbal Tanha, the Court said that frivolous invocation of “extremely grave and serious penal provisions” under UAPA “would undermine its intent and purpose.

Shaheen Bagh ProtestsAditiPublished on : 15 Jun, 2021 , 12:46 pm

Foundations of our nation cannot be shaken by a protest organised by a tribe of college students, said the Delhi High Court on Tuesday as it opined that prima facie, no offence under the Unlawful Activities (Prevention) Act was made made against Asif Iqbal Tanha (Asif Iqbal Tanha vs State).

Admitting Tanha on regular bail, a Bench of Justices Siddharth Mridul and Anup J Bhambhani observed,

“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 situate in the heart of Delhi.”

Justices Siddharth Mridul and Anup J Bhambhani

Cautioning against the frivolously invocation of the “extremely grave and serious penal provisions” under UAPA, the Court added that such an approach “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”.

“Wanton use of serious penal provisions would only trivialise them“, the Court said.

In Tanha’s bail order, the Court discussed in detail the scope of the phrase ‘terrorist act’ under section 15 of UAPA and opined that the term cannot be used so lightly that it would “trivialise the extremely heinous offence of terrorist act”.

The Court clarified that terrorism under UAPA ought to be understood differently from conventional, heinous crimes that fall within the Indian Penal Code.

The Court thus opined that the intent and purport of UAPA is to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less.

“In our 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 had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less.. 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’,” it said.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 had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less.Delhi High Court

In the backdrop of the above discussion, the Court noted that the only specific, particular and overt act attributed to Tanha in the chargesheet was that he handed over a SIM card given to him by someone else, to a co-conspirator/coaccused, which was further used to send messages on a WhatsApp group.

Furthermore, there was no allegation of recovery of arms, ammunition and other articles from Tahna, the Court added.

Considering the above and the fact that the alleged disruptions were restricted to North-East Delhi, the Court rejected Delhi Police’s stand that the ongoing protests were “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 charge-sheet will not convince us otherwise. 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 Court opined.

The Court further held that there was “absolutely nothing” in the chargesheet against Tanha, by way of any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA.

Whether the protests entered the forbidden realm of a non-peaceful protest and whether offences were consequently committed, was the subject matter of another FIR in which Tanha was already on bail, the Court recorded.

While granting bail, the Court also considered that trial would not see conclusion for many-many years to come.

“Should this court then wait until the appellant has languished in prison for a long enough time to be able to see that it will be impossible to complete the deposition of 740 prosecution witnesses in any foreseeable future, especially in view of the prevailing pandemic when all proceedings in the trial are effectively stalled? 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.”, the Court questioned.

Apart from weighing in the three cardinal concerns against grant of bail pending trial i.e. evidence tampering, witness intimidation and abscondence, the Court also considered that pre-trial detention would not only lead to needless psychological and physical deprivations but also seriously hamper Tanha’s participation in preparation of his defence at the trial.

Senior Advocate Siddharth Aggarwal with Advocate Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhari, Nitika Khaitan appeared for Tanha.

State was represented by ASG SV Raju and SPPs Amit Mahajan, Amit Prasad, Rajat Nair.

courtesy Bar and Bench