16, Jun 2021 | Adv. Mihir Desai

Over the past few years, Indian civil society has been badly hit by use of laws such as Unlawful Activities Prevention Act (UAPA), sedition, FCRA, NSA, AFSPA* and various other similar laws. UAPA is possibly the most extreme due to its stigmatising effect and the Himalayan problem of getting bail, used wantonly in a large number of cases such as the Bhima Koregaon case, Akhil Gogoi case, the recent Andhra Telangana arrests, the Hathras rape case, Delhi CAA-NRC cases, Reliance workers cases, Jharkhand Adivasi cases and a multitude of others.

This was coupled with the Zahoor Vatali Judgment of the Supreme Court (2019) which made bail virtually an impossibility. It is in this context that the Delhi High Court Judgment has arrived as succour and solace not only to those arrested but to civil society as a whole.

The facts are known to all followers of the Shaheen Baug and related protests concerning CAA/ NRC. Peaceful in Delhi and across the country were led by women and students and went on for months. A riot took place–according to most neutral observers started by the saffron brigade and helped by complicit actions of the police. The protests were sought to be turned on their head by the authorities claiming that Muslim groups and certain radical students were the ones who conspired and helped carry out the riots. This was despite clear evidence to the contrary. FIRs were lodged and students including Natasha, Devangana and Asif were arrested under the infamous FIR No. 49 of 2020 apart from other FIRs. Initially the charges were under ordinary criminal law but after that UAPA was added more particularly Sections 15, 17 and 18 of the UAPA dealing with terrorist acts.

The National Investigating Agency (NIA) took over investigation and the Special Court rejected bail. Appeals were filed in High Court which ultimately led to the Judgments on June 15, 2021.

There are three separate judgments but the lead Judgment is the one given in Asif’s case. While the Judgments only grant bail and the trial continues, their importance and the potentialities cannot be seen only in this limited context. Many of us are delighted because young, conscious and sensitive students have been set at liberty, finally. However, the Judgments go much beyond this and the opportunities opened up by these verdicts are immense. It is this context which I want to examine in the present piece.

The importance of these Judgments lie in their rigour, logic and creativity. Undoubtedly the Judgments, while discussing the facts in detail find that none of the accused were prima facie involved in any terrorist activities but here, I want to focus on certain aspects which go beyond the specificities of the case.

First, the context and purpose of the UAPA. The Delhi High Court goes into the history of the UAPA and comes to the conclusion that the Indian Parliament could only have enacted this law by taking recourse to entry 1 of List I of Schedule VII to the Constitution. Schedule VII deals with the division of legislative powers between the Centre and the States. List I deals with those issues concerning which the Parliament has the power to enact laws. Entry I of this list deals with the defence of India and allied subjects. Entry 2 of List 2 (the State list) deals with public order. The Court holds that since the Parliament could not pass a legislation concerning ordinary law and order issues (which only the State Assembly can enact),  therefore the UAPA should be interpreted in manner that it applies only in situations where the defence of India is threatened and not merely where a law and order or even public order situation arises.

The Court therefore observes:

“In our opinion, the intent and purport of the 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 the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.”

Thus, the Court, arrives at the very important conclusion that UAPA can only apply to cases which are severe as to affect the stability of the nation.

Second, and following from the above, the Court goes into Sections 15, 17 and 18 of the UAPA which Natasha, Devangana and Asif are charged under. These Sections form part of Chapter 4 of the Act dealing with Terrorist activities. It should be kept in mind that they are not charged with belonging to a banned organisation. Section 15 defines terrorist act, section 17 concerns raising funds for a terrorist act and section 18 deals with punishment for conspiracy to commit, advocate, etc. terrorist act(s). The Court observes that the words terror or terrorism are nowhere defined under the Act.

The phrase ‘terrorist act’ is sought to be defined under Section 15 but it is very broad and vague. Ordinarily such a vague provision would have to be struck down since criminal law has to be strictly construed and everyone should know what is an offence and what is not. However, the only way to treat this provision as Constitutional is by narrowing its ambit and giving a strict definition to it.

Therefore, terrorist acts can only include those acts which affect the community at large and have the impact on destabilising or attempt to destabilising the country. Ordinary law and order problems or even public order problems no matter how grave cannot fall within the definition of terrorist acts.

In the present case, since the violence attributable to these persons even if assumed to be true cannot partake the nature of terrorist act and thus the provisions of UAPA cannot be made applicable to these three accused. If the provisions of UAPA are not applicable, the stringent bail conditions prescribed under Section 43 (D) (5) will also not apply and thus their bail applications will have to be considered by examining their cases under the provisions of bail under ordinary criminal law.

Next, the Court says that even if the stringent bail conditions as applicable under UAPA are to be applied these provide that an accused shall not be released if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This, according to the Court means that the burden is on the prosecution to show that the accused is prima facie guilty. Dealing with the infamous Vatali Judgment of the Supreme Court, the High Court observes:

“The decision of the Hon’ble Supreme Court in Watali (supra) proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea; and as a sequitur, for assessing the prima facie veracity of the accusations, the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material placed with the subject charge-sheet. To bring its case within Chapter IV of the UAPA the State must therefore, without calling upon the court to draw inferences and conclusions, show that the accusations made against the appellant prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.”

This ingenious interpretation of the Vatali Judgment puts fetters on the prosecution from making wild and unsubstantiated allegations as they are prone to do in many UAPA cases.

Further, the Court holds that the right to peaceful protest is a fundamental right. Now this is a Constitutional given and even the Supreme Court has recognised it time and again albeit with certain caveats. The importance of the Delhi High Court judgments lie in the fact that they use this premise to advance the logic and cleverly craft an argument which is as follows: Citizens have a right to peacefully protest for all kinds of causes. Of course, they do not have right to be violent. But just because people turn violent does not mean they are terrorists or are indulging in terrorist activities. Terrorism is something which is intended to destabilise the State and violence which occurs in one part of a large city like Delhi does not amount to destabilising the State and thus does not amount to terrorism. Those who indulge in or provoke violence can of course be tried under the Penal Code but not under UAPA.

Lastly, the Court deals with Najeeb’s Case (2021) in which the Supreme Court had held that a person jailed under UAPA is not denuded of his fundamental rights, the right to speedy trial being a fundamental right and the undertrial is therefore entitled to be released on bail if the trial is likely to take very long. The accused before the Supreme Court was in jail for 5 years and the maximum punishment he could have been awarded would have been 8 years. The Court released him on bail. In the Delhi case, the State argued that the accused were in jail for only one year and thus even according to Najeeb’s case there had not been prolonged incarceration. The observations of the Court are striking:

“Should this court wait till the appellant’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? We hardly think that that would be the desirable course of action. In our view the court must exercise foresight and see that trial in the subject chargesheet will not see conclusion for many-many years to come; which warrants, nay invites, the application of the principles laid down by the Hon’ble Supreme Court in K. A. Najeeb.”

This is a very crucial point for all cases under UAPA. Trials take a long time and Najeeb’s case was sought to be interpreted to mean that only if a person is in jail for a very long period that she could be released on bail. The High Court judges use their judicial acumen to refute this and say that even if a person has been in jail for a short period, if looking at the overall circumstances the Court is of the opinion that the trial will take a long time the accused even under UAPA can be released on bail.

The Division Bench comes to the conclusion that the provisions of UAPA can only be used in exceptional circumstances. It is altogether another matter that UAPA itself does not deserve to remain on the statute books. We need to also bear in mind that the stringent bail conditions of UAPA deal with two distinct nature of cases. Terrorist acts with which the present case is concerned with and membership and activities of terrorist organisations which is an altogether different scenario. Of course, some of the concerns dealt with in the present Judgments will also extend to issues concerning terrorist organisations under which many other UAPA cases such as the Bhima Koregaon case, the Andhra Telangana cases, etc. But to what extent the force of these judgments is fully applied to these cases will have to be watched.

Justice Mridul and Justice Bhambhani who decided this matter need to be saluted. As do the impressive legal team that led the defence for all three student activists. Obviously, Judges do not decide matters in a socio-political vacuum which affects them as much as it affects ordinary people. The following observation from the Judgment makes it clear:

“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 wouldbe a sad day for democracy.”

Undoubtedly these Judgments bring cheer to a large number of people but we should not forget that Supreme Court’s Vatali Judgment resulted from overruling an excellent Delhi High Court Judgment. We should cautiously await the next developments but it may be that the times they are a changing even in the Supreme Court. Hopefully this change for the better, towards constitutionally protected freedoms will endure for long.

*Foreign Contribution Regulation Act, National Security Act, Armed Forces Special Powers Act

(The author, Mihir Desai is a senior advocate, Bombay High Court, involved in battling several cases dealing with the protection of constitutional freedoms and civil liberties including defending some of the accused in the Bhima Koregaon case)