16, Jun 2021 | Adeeti Singh
Securing bail under Unlawful Activities (Prevention) Act, 1967 is an anomaly but not on June 15, when the Delhi High Court granted bail to student activist Asif Iqbal Tanha and Jawaharlal Nehru University (JNU) students Natasha and Devangana in the North East Delhi Violence case.
All three have been implicated in FIR No. 59 of 2020, under charges of conspiracy to incite violence and block roads (chakka jam) to protest against the citizenship laws and adversely impact the supply of goods into the National Capital.
What is this conspiracy case?
In Case FIR number 59 of 2020 registered on March 6 2020, the Delhi Police had claimed that both Devangana and Natasha, who are members of women’s rights organisation called Pinjra Tod (break-free from the cage, namely from societal shackles) and as part of the WhatsApp groups under the name Warriors, Auraton ka Inquilab, Delhi Protest Support Group, and Jamia Coordination Committee (JCC), engaged in a conspiracy to plan the riots and destabilise the government in the guise of anti-CAA and anti-NRC protests.
They were also allegedly responsible for escalating their chakkajam agitation (which may loosely be translated as a form of protest in which protesters block roads); and indulged in distributing packets of chilli-powder to women protesters, with the purpose of attacking the police and military with it.
For Asif, the State alleged that the chakkajam planned was with a “difference” and the intention was “to stop milk and water” and was to be done not only in Delhi but in “every place where it was possible for Muslims” to organise it. It was intended to “cause riots and fear”.
Further, the State contended that Asif was associated with JCC, which aligns with that of Muslim Students of JNU and is in place to “debunk the secular values of the Constitution and to aggravate differences between the communities so as to cause social disharmony and bring out a feeling of disunity.” Asif was also accused of handing over a SIM card given to him by someone else, to a co-conspirator which, it is further alleged, was used by the said co-conspirator to send messages on a WhatsApp group.
Delhi HC’s observations on Right to Protest
Since these cases stemmed from the issue of protests, the High Court tried to examine the contours of legitimate protests that do not threaten the nation. In all three judgments granting bail to the accused, the Delhi High Court Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani referred to the top court’s decision in Mazdoor Kisan Shakti Sangathan.
This Supreme Court’s decision has already said that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong, because people have the right to express their views. A demonstration that turns noisy, disorderly and even violent, would not fall within the permissible limits of Articles 19(1)(a) or 19(1)(b) and in such cases the Government has the power to regulate, including prohibit, such protest or demonstration.
The court had also ruled that the Government can prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic but cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Articles 19(1) (a) and 19(1)(b) of the Constitution.
Taking the protests carried down by the three accused in this context, the Delhi High Court held that there was nothing to show that the Government had prohibited the protest at the relevant time, much less is there anything to show that they were perpetrators or conspirators involved in any illegal protest.
“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. Accordingly, prima-facie we are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found any of the offences defined under section 15, 17 or 18 UAPA”, read all three judgments.
General Bail Principles
While granting bail, the High Court said that it must keep in mind not only the nature of accusations but also the severity of the punishment and the nature of evidence in support of the accusations. Additionally, the court must also reasonably assess the apprehension of flight risk, evidence tampering and witness intimidation, with careful regard to the “genuineness of the prosecution.”
The court must also consider the character, behaviour, means, position and standing of the accused and the likelihood of the offence being repeated. “We remind ourselves that the object of bail is neither punitive nor preventative but is principally to secure the presence of the accused at the trial; and that punishment begins only after conviction and that everyone is deemed to be innocent until duly tried and found guilty,” said the Bench.
The court also referred to the profound insight of Justice V.R. Krishna Iyer, J., when he said that the consequences of pre-trial detention are grave and that by being kept in custody, an undertrial accused, though presumed innocent, is subjected to:
- psychological and physical deprivations of jail life;
- prevented from contributing to the preparation of the defence;
- and that the burden of pre-trial detention frequently falls heavily on the innocent members of the family.
The High Court perused the subject charge-sheet and the material included in it, and held that prima-facie the allegations made against Natasha, Devangana and Asif are not even borne-out from the material on which they are based.
In Devangana Kalita’s bail judgment (Crl. App. No. 90/2021), the Bench said, “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 and/or 18 of the UAPA…. protests against Governmental and Parliamentary actions are legitimate; and though such protests are expected to be peaceful and non-violent, it is not uncommon for protesters to push the limits permissible in law. The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions.”
In Natasha Narwal’s bail order (Crl. App. No. 82/2021), the court remarked, “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.”
In Asif’s case, the High Court said that handing over a SIM card given to him by someone else, to a co-conspirator, which, it is further alleged, was used by the said co-conspirator to send messages on a WhatsApp group, was not enough to keep him incarcerated. “In our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made,” held the court.
The judgment also reflects the poor case of the government that kept the three accused confined in a jail without substantial reasons, amid a ravaging pandemic, away from their loved ones. The court found the subject chargesheet filed against them to have “complete lack of specific, particularised, factual allegations”, that is to say that the allegations other than those sought to be spun by mere grandiloquence did not make out the ingredients of the offences under sections 15, 17 or 18 of the UAPA.
The State attempted to argue that even the likelihood that Asif’s acts or omissions may threaten the nation are an offence under the UAPA. But the court refuted these allegations to say that in this aspect of likelihood of threat and terror, “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”.
Focusing on how the Shaheen Bagh protestors and other anti-CAA protestors were demonised and vilified by the vicious attacks of the government, the court opined on the same, taking a dim view. “It has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was 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”, read the judgment in Asif Tanha’s appeal.
Natasha, Devangana and Asif like many others, have spent over 13 months in Tihar Jail having lost over a year of their lives and several hours with their loved ones. This verdict comes as a juggernaut of hope for not only them but all others who have been awaiting trial within confined spaces under fallacious charges.
The judgments may be read here: