Even if anti-CAA protest got violent, disorderly, it can't be called terrorism: HC

New Delhi: In what can be considered as the most crucial aspects of the judgments granting bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha in the UAPA case related to the Delhi riots, the Delhi High Court has significantly ruled that the anti-CAA/NRC protests or any other protests (regardless of its reason) even if turns violent and causes public disorder, cannot be construed as terrorism or terrorist activity under the ambit of the stringent Unlawful Activities (Prevention) Act.

In the judgment granting bail to Jamia Millia Islamia student leader Asif Tanha, the Bench of Justices Siddharth Mridul and Anup J Bhambhani set down clear precedent-setting rulings as to how material should be appreciated by courts in UAPA cases, why protest activities even if violent or cause nuisance, cannot be called terrorism, and why if this is done, the constitutionality of the UAPA might come into question.

For starters, the court clearly rules that while considering bail application in such cases, the judiciary must first apply its reasoning as to whether the prima facie allegations with the given evidence can be accepted and whether the charges are made out. It observed that the Special Courts had not done this while rejecting the three bail applications previously simply because the Centre had conducted a similar exercise before granting sanction.

Moreover, the high court said: "In fact, we are of the view that the purported independent review of evidence by a purported independent authority; and the fact that the Central Government has, based thereupon, granted sanction of prosecution for offences under Chapters IV or VI of the UAPA, must never enter the consideration of the court when deciding whether the ingredients of any offence under the UAPA are disclosed in the charge-sheet."

Moreover, while ruling on the bail applications of both Kalita and Narwal, the court made strong observations about the tendency to confuse protest activities as "terrorist acts", specifically noting in Narwal's bail order: "Allegations relating to inflammatory speeches, organising of chakka jam, instigating women to protest and to stock-pile 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 bear-out the allegation, that the appellant 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."

In fact, in Kalita's bail order, the court goes on to point out: "The making of inflammatory speeches, organising chakka jams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. 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 (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.

In the same order, the court also said that unless charges under UAPA are clearly discernible (which they are not as per the HC in these cases), "surely the right to protest is not outlawed and cannot be termed as a 'terrorist act' within the meaning of the UAPA".

Making it abundantly clear with the support of a slew of precedents in the bail order for Tanha, the court notes that the UAPA legislation was brought in by the Centre under List I of the Seventh Schedule to the Constitution and the only Entry under which the UAPA can be applicable is Entry 1 read with Entry 93 which calls for actions in relating to the Defence of India and offences with respect to the Defence of India.

The Justices, in their order, reason that this is the only intent with which UAPA could have been brought into law. This is because the law's intent and purpose was never to tackle usual offences, however grave, egregious or heinous because such conventional matters would invariably fall under Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule of our Constitution.

Hence, ruling that UAPA can only be applied to offences that are a threat to the Defence of India under List I because if it ventures into any other Lists, the very constitutionality of how the legislation was brought in by Parliament would be under doubt.

Moreover, the high court notes in Asif's order: "In our opinion, the intent and purport of 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. Absent this, UAPA could not have been enacted by Parliament..."

In addition to this, the high court, in all three of its bail order has made it clear after citing several precedents guaranteeing and setting limits to the right to protest, that no matter the reason for the protest, the mode of protest, whether it is violent, nuisance-inducing or even disturbing, the protest or offences arising from the disorderly protest are already covered under IPC sections.

The court also noted: "... 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."

Specifically, for these three accused, the court noted that these offences of disorderly protests are already being investigated and the accused have already got bail in those cases and are awaiting trial.

Furthermore, citing more precedents, the court explained that there are three levels to disorder. It reasoned that a law and order problem could arise without affecting public order. The same way, it said, protest activities could cause public disorder but this does not mean they are all terrorist activities.

Justices Mridul and Bhambhani also made a specific distinction with respect to the reasoning that the UAPA law should be used only in the "Defence of India". It noted that given the cases and charges against the three arose from rioting between February 22 and February 26 in north-east Delhi, it cannot be said that the offences alleged herein posed a threat to the Defence of India geographically, noting that the impacts of the offences were highly localised.

"There is no allegation in the subject charge-sheet that the anti-CAA protest extended even to the whole of the National Capital Territory of Delhi; and a perusal of the subject charge-sheet shows that the protest and the disruptions it is alleged to have caused were restricted to North-East Delhi. It would therefore be a stretch to say that the protest affected the community at large for it to qualify as an act of terror," the court found.

The high court cited the Hitendra Vishnu Thakur & Ors V State of Maharashtra & Ors judgment to reason that terrorist activity "must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law".

Another significant portion of the above-mentioned judgement that the court cited to explain this was, "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."