In anxiety to suppress dissent, State confusing right to protest with terrorism: Delhi HC

New Delhi: The Delhi High Court in a precedent-setting batch of judgments on Tuesday, granted regular bail to Jamia student Asif Iqbal Tanha and JNU students Devangana Kalita and Natasha Narwal in the Delhi Police's UAPA case against them for allegedly conspiring to incite the north-east Delhi riots last year, noting that the Central government, in its "anxiety to suppress dissent and in the morbid fear that matters may get out of hand", has "blurred the line between the constitutionally guaranteed 'right to protest' and 'terrorist activity'".

The court noted that if this mindset of the state "gains traction, democracy would be in peril".

Incarcerated for over a year now, all three anti-CAA activists are set to step out of jail, given that they have secured bail in all other cases registered against them.

However, after the Bench of Justices Siddharth Mridul and Anup J Bhambhani pronounced its judgment flaying the police and the government, the Delhi Police issued a statement saying: "We are not satisfied with the interpretation of the provisions of Unlawful Activities Prevention Act by the Hon'ble High Court in a matter concerned with grant of Bail. We are proceeding with the filing of a Special Leave Petition before the Hon'ble Supreme Court of India."

In addition, a local court on Tuesday night deferred the immediate release of Kalita and Narwal, after it sought a verification report from the police for their addresses and sureties by 1 pm today (Wednesday).

Incidentally, Tanha is already out of jail as he had been granted interim release to prepare for his exams. The HC order makes it clear that its order will supersede that of the one granting him interim release.

Crucially, through careful reasoning, the high court has dismantled all the allegations leveled against the three accused under the stringent provisions of the UAPA, making poignant observations on how courts must appreciate material at the stage of bail in UAPA cases.

The Bench first settled Asif Tanha's case — spelling out in detail, the reasons for which charges under the UAPA — specifically Sections 15, 17 and 18 — cannot be made out prima facie, thereby reasoning that the stringent restrictions on bail under the UAPA cannot be considered and that the accused's position must be considered as per the general principles of bail.

The Bench that went on to author the bail orders for both Kalita and Narwal, then uses the precedent set out in Tanha's bail order to rule that the allegations levelled against the two Pinjra Tod activists also do not merit UAPA charges, hence their cases must also be considered on the general principles of bail.

In its reasoning for why UAPA cannot be applied here, the high court significantly concludes that the offences arising out of the initial anti-CAA/NRC protests cannot be cause for invoking this law and given the ambiguity of the definition of "terrorism" and "terrorist act" in the legislation, any act causing public disorder cannot be called terrorism.

In all three bail orders, the HC noted: "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 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 of UAPA. We are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found the offences defined under Section 15, 17 or 18 of UAPA."

Reasoning the inapplicability of Section 15 of UAPA, the court considers that the prosecution has desperately argued that "intent to threaten" foundations of the nation may also cover acts that are "likely to threaten" such foundations. However, the court concludes: "Having given out 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 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."

On multiple occasions, the high court heavily criticised the 19,000-page charge-sheet filed in the case for being riddled with "mere grandiloquence", "superfluous verbiage", "hyperbole", and "stretched inferences" and for having no particular and specific factual allegations against either of the three accused that would merit charges under UAPA.

Noting this, the high court said: "Foisting extremely grave and serious penal provisions engrafted in Sections 15, 17 and 18 of UAPA frivolously upon people, would undermine the intent and purpose of 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."

Notably, the court also considered the prosecution's argument that there are over 700 witnesses that the accused needed to be confronted with and this was not a case of undertrials being incarcerated without a trial in sight. But after taking this account, the Bench ruled that this was not the case. It asked: "Should this court wait till the appellant's (Asif Tanha'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?" Stating that it was hardly a desirable course of action, the court ruled, "...the court must exercise foresight and see the trial in the subject charge-sheet will not see conclusion for many-many years to come…"

The court also asked whether it should wait till Tanha languished in jail long enough for it to be proven that it would be impossible to confront him with 740 witnesses.

Most importantly, the high court while setting aside the Special Court orders rejecting bail to Asif, Narwal and Kalita in this case, has noted that at this stage of the case, courts must apply judicial reasoning as to whether charges under UAPA are made out.

It observed that the Special Courts had accepted that the charges had prima facie merit because they were pressed after approval from the Centre, which had employed an "independent agency" to check whether the charges are made out. The judgment noted that it is imperative for courts to not consider this opinion of the state and to apply judicial reasoning as to whether the charges are made out prima facie.

While this is not the first accused getting regular bail under UAPA in this riots case, the judgment is set to impact the cases of all other students and activists charged with these sections in this case. Faizan Khan, a co-accused in this case, was the first one to be granted regular bail in the UAPA case.

All other UAPA accused in the Delhi riots cases remain in jail, having secured bail in all other cases. The only exception is Jamia student Safoora Zargar, who was granted bail on humanitarian grounds when she was pregnant.