While granting bail to Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita in connection with the Delhi riots, the Delhi High Court on 15 June said that the Delhi Police had failed to make a prima facie case under the India’s anti-terrorism law, the Unlawful Activities Prevention Act (UAPA), 1967, and they could not build a case with “superfluous verbiage, hyperbole and stretched inferences” or deny bail by “confusing issues.”
Tanha, Narwal and Kalita were among the students and activists who led a ten week-long protest against the Citizenship Amendment Act (CAA) starting in December 2019, and were later accused of instigating the communal violence that ravaged northeast Delhi in February 2020, claiming the lives of 53 people, 40 of them from the minority community, as per a Delhi Police affidavit submitted to the Delhi High Court in July 2020.
On the issue of free speech in the context of the anti-CAA protests, the Delhi High Court, in the judgment granting bail to Tanha, and referring to Jamia Millia Islamia University, one hub of the anti-CAA. protest, said, “We are of the view that the foundations of our nation stand on surer footing than to be likely 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.”
On the Delhi Police allegation that the anti-CAA protesters had carried out an “aggravated protest” aimed at disrupting life in Delhi, the High Court said, “We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on 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.”
…we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations.
Bail to the three student activists in FIR 59/2020 of the Delhi Police Crime Branch was granted by the division bench of Justice Mridul Siddharth and Justice Anup Jairam Bhambhani on 15 June, with Bhambhani writing the judgement.
FIR 59/2020 is the “conspiracy” case of the Delhi Riots, in which 15 people, some of them students and political activists, including Safoora Zargar, a sociology student at Jamia Millia Islamia University, and Umar Khalid, a PhD from Jawaharlal Nehru University (JNU), have been accused of using the anti-CAA movement as a front for plotting the communal violence, and charged for crimes like murder and terrorism.
Tanha, who hails from Jharkhand and was studying Persian at Jamia Millia Islamia, was arrested in May 2020 and subsequently charged in FIR 59/2020.
Narwal and Kalita, PhD candidates at JNU, were arrested in May 2020 and charged in multiple cases (Kalita-4 and Narwal-3) in connection with the Delhi Riots. They were granted bail in the other cases, with the judge in FIR 48/2020 observing that they were only protesting against the CAA, not indulging in violence, but remained incarcerated in FIR 59. Narwal lost her father to Covid-19 last month while she was incarcerated in Tihar Jail.
No grounds for UAPA
For all three accused, Tanha, Narwal and Kalita, the Delhi High Court said, “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 UAPA. We are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to find the offences defined under Section age 15, 17 or 18 UAPA.”
“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”…
In the judgment granting Tanha bail, the High Court, said that “there is complete lack of any specific, particularised, factual allegation, that is to say allegations other than those sought to be spun by mere grandiloquence…”
The High Court observed, “Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, 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.”
In Tanha’s case, the High Court said that it had been able to “discern only one specific, particular and overt act that the appellant is stated to have committed” — the handing over a SIM card given to him by someone else to a co-conspirator and co-accused. “Other than this one action that is specially attributed to the appellant, this court is unable to discern any other act or omission attributed specially to the appellant,” the High Court said.
Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament…
For Natasha Narwal and Devangana Kalita, the Delhi High Court said that the government had not prohibited protests, and if the protests were non-peaceful, it was a matter of other cases in which she had already been granted bail. For both women, the Delhi High Court said, “‘no specific, particularised or definite act’ is attributed to the appellant, 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 certain parts of northeast Delhi.”
Noting that the instructions issued by the main accused are not directed at Narwal, the High Court said, “In our reading of the subject matter charge-sheet and the material included in it, therefore, are not even borne from the material on which they are based. The state cannot thwart the grant of bail merely by confusing issues.”
The state cannot thwart the grant of bail merely by confusing issues.
Noting the same for Kalita, the High Court said, “We are afraid, that in our opinion, 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, 17 or 18 of UAPA.”
…shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency…
The High Court for Narwal said that allegations relating to inflammatory speeches and organising of chakka jaam did not relate to the commission of a “terrorist act.”
“Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stockpile 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 committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA,” it said.
For Kalita, one the same issue, the High Court said that even if the court were to presume that there were inflammatory speeches, chakkajams, instigation of women protesters, to which she was a party, and these exceeded free speech protection under the Constitution, that would not amount to a “terrorist act”or a “conspiracy” or an “act preparatory” to the commission of a terrorist act under the UAPA.
The High Court said, “We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the state, the line of 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.”
If this mindset gains traction, it would be a sad day for democracy.