Line between right to protest and terrorist activity blurred: Delhi HC

New Delhi: In its anxiety to suppress dissent, the State has blurred the line between right to protest and terrorist activity and if such a mindset gains traction, it would be a "sad day for democracy", the Delhi high court observed on Tuesday while granting bail to three students from Jawaharlal Nehru University and Jamia Millia Islamia arrested over a year ago for the riots that followed protests against the controversial citizenship law.

Terming as “somewhat vague” the definition of a “terrorist act” under the stringent UAPA law and warning against its use in a “cavalier manner”, the high court set aside the trial court orders rejecting bail to JNU students Natasha Narwal and Devangana Kalita and Jamia’s Asif Iqbal Tanha, allowing their appeals and admitting them to regular bail.

“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 situated in the heart of Delhi,” a bench of Justices Siddharth Mridul and Anup Jairam Bhambhani said.

Based on the assessment of the facts, the bench said: “In our opinion, the court must be careful in employing the definitional words and phrases in Section 15 in the absolute literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime. The words ‘terrorist act’, including conspiracy and act preparatory to the commission of a terrorist act, were brought within the purview of UAPA by the amendment of 2004, on the heels of Parliament repealing POTA in 2004 and TADA having already been repealed in 1995,” the court said.

On the “right to protest”, the court said the government may prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic, “but it cannot close all streets or open areas for public meetings, thereby defeating the fundamental right that flows from Article 19(1)(a) 19 (1)(b) of the Constitution”.

Ms Narwal and Ms Kalita, both JNU Ph.D. scholars linked with women’s rights group Pinjra Tod Collective, and Mr Tanha were arrested in May 2020. They were accused of being “masterminds” of the February 2020 violence in northeast Delhi and denied regular bail by the trial court.

Ms Narwal, Ms Kalita and Mr Tanha are accused in four, three and two cases respectively relating to communal riots that broke out on February 24 last year and will now be released from jail as they have already got bail in other matters.

Welcoming the high court order, student activists and bodies demanded that all political prisoners arrested under the Unlawful Activities (Prevention) Act should also be released. JNU Students’ Union president Aishe Ghosh said on Twitter: “Delhi HC grants bail to Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal in UAPA case. Release All Political Prisoners.”

The Left-affiliated All India Students’ Association (AISA) said: “Delhi HC frees Asif, Devangana & Natasha! Using UAPA to silence pro-democracy student activists protesting against divisive #CAA_NRC_NPR law by Modi govt stands exposed.” They also demanded the release of student activists Sharjeel Imam, Umar Khalid and others arrested under UAPA.

Jamia scholar Safoora Zargar, who herself is a co-accused in the UAPA case, said it was one of the happiest days of her life. “Bail to Devangana, Natasha & Asif in UAPA case. One of the happiest days of my life. Let more follow. Let justice prevail. Alhamdulillah,” she tweeted. Ms Zargar was granted bail in the case in June last year. The Delhi police did not oppose the high court’s decision on humanitarian grounds as she was pregnant at that time.

Delhi University professor Apoorvanand, who was questioned by the police over the northeast Delhi riots in August last year, said the whole exercise “was to shield the real perpetrators”. He said: “None of them should have been charged or arrested in the first place. All others must be freed. This whole exercise is a conspiracy to shield the real conspirators and perpetrators of the violence of Feb 2020 in Delhi. They are out and ruling us. Spreading hate, planning violence.”

In three separate judgments of 113, 83 and 72 pages, the high court said though the definition of “terrorist act” in UAPA’s Section 15 is somewhat vague, it must partake the essential character of terrorism and the phrase “terrorist act” cannot be permitted to be applied in a “cavalier manner” to criminal acts that squarely fall under the IPC.

“We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy,” which would be in peril, the bench said, adding there was nothing to show the possible commission of a terrorist act.

The high court directed Ms Narwal, Ms Kalita and Mr Tanha to surrender their passports and not to offer any inducement to prosecution witnesses or tamper with the evidence in the case. It also said the three accused shall not indulge in any unlawful activities and shall reside at the address as mentioned in records.

The bench said there is absolutely nothing in the chargesheet, by way of any specific allegation, to show the possible commission of a “terrorist act” within Section 15 of UAPA, an act of “raising funds” to commit a terrorist act under Section 17 and an act of “conspiracy” to commit or an “act preparatory” to commit, a terrorist act within Section 18 UAPA.

The court noted the chargesheet was filed on September 16, 2020 and there are 740 prosecution witnesses, but the trial is yet to commence, which is unlikely to begin soon in view of the truncated functioning of courts due to the prevailing second wave of the Covid-19 pandemic.

Regarding Ms Narwal and Ms Kalita, the high court said given their educational background, profile and position in life, it sees no reason to suspect or apprehend that they are either a flight risk or that they will indulge in evidence tampering, or witness intimidation, or will otherwise impede the trial in any way.

The court said no specific act is attributed to Ms Narwal, apart from the admitted fact that she engaged herself in organising anti-CAA and anti-NRC protests around the time when violence and rioting broke out in some parts of northeast Delhi.

On Ms Kalita, the court said as a member of women’s rights outfits and other groups, she did participate and help organise protests against the CAA and NRC in Delhi and said the right to protest, a fundamental right to assemble peaceably and without arms, is surely not outlawed and cannot be termed as a “terrorist act” within the meaning of UAPA, unless the ingredients of offences are clearly discernible from the allegations. It said that inflammatory speeches and organising chakka jams are not uncommon when there is widespread opposition to governmental or parliamentary actions.

The bench said: “Even if we assume... inflammatory speeches, chakka jams, instigation of women protesters and other actions, to which Kalita is alleged to have been party, crossed the line of peaceful protests permissible under our constitutional guarantee, that however would not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act ... under UAPA.”

In an earlier ruling relating to Mr Tanha, the high court said the phrase “terrorist act” can’t be permitted to be casually applied to criminal acts that fall squarely within the definition of conventional offences under the Indian Penal Code.