“Right to Protest” is not a “Terrorist Act”: Delhi HC Observes While Granting Bail Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita

Team SoOLEGAL 16 Jun 2021 3:27pm

“Right to Protest” is not a “Terrorist Act”: Delhi HC Observes While Granting Bail Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita

The Delhi High Court concluded that there is no prima facie evidence against student leaders Asif Iqbal Tanha, Natasha Narwal, and DevanganaKalita under the Unlawful Activities Prevention Act (UAPA). Delhi police filed a chargesheet against them stating that the protests were organized against the Citizenship Amendment Act.

After a preliminary examination of the chargesheet, The High Court bench comprising Justices Siddharth Mridul and Anup Jairam Bhambhani concluded that the accusations do not prima facie establish the claimed UAPA offences pertaining to terrorist activity (Sections 15,17 and 18). The division bench held that the rigour of Section 43D (5) of the Unlawful Activities Prevention Act, which prohibits the grant of release, was not applied against the accused, and therefore they were entitled to bail under the Code of Criminal Procedure.

The accused person has already spent a year in Tihar Jail, even in the time of the two deadly waves of the COVID pandemic. They were not eligible for interim bail due to the pandemic since they were charged under the UAPA.The High Court had given Natasha Narwal interim bail for three weeks to complete the funeral rituals after her father Mahavir Narwal died of COVID last month.The High Court has conducted a factual examination of the allegations to see if a prima facie case is made out against Tanha, Narwal, and Kalita for the purposes of Section 43D (5) of UAPA.

Right to peaceful protest is a constitutional right under Article 19(1)(a) of the Constitution of India, the High Court has also stated that, “Right to protest is not illegal and can’t be termed as a terrorist act in the scope of UAPA, unless it contains the ingredients of the section 15, 17, 18 of UAPA.”The charge-sheet contains "absolutely nothing" in the 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 17 UAPA.

The chargesheet stated that the defendants were involved in mobilising people and creating roadblocks, to protest against the CAA, according to the Court. The only specific act alleged against him that is Tanha, according to the Court, is that he gave over a mobile SIM card, which had been supplied to him by someone else, to another accused conspirator, who then used the SIM card to create a WhatsApp group and transmit messages about the CAA protest.

The Court stated that there are no allegations that the arms, ammunition and other articles, were recovered from the appellant, and also noted that CAA protests were not illegal and the protest are being monitored by enforced agencies. The bench noted in its decisions in the instances of Kalita and Narwal that the allegations merely demonstrate that they organised protests as members of women's groups. Even against them, there is no precisethat falls outside the purview of UAPA Sections 15 and 17.

The Court said that even if the protest has crossed the line of peaceful protest, still it doesn’t come in purview of terrorist act under the said act. While this, it was also stated the organising chakkajams, inflammatory speeches are common when there is widespread opposition to government or parliamentary actions. The chargesheet, which used "superfluous language," "hyberbole," "stretched conclusions," and "grandiloquence," according to the Court, did not show any prima facie crime.

The court said that, “We are concerned that, after removing the unnecessary language, exaggeration, and stretched conclusions derived from them by the prosecuting agency, the factual accusations presented against the appellant do not prima facie disclose the commission of any offence under sections 15, 17, and/or 18 of the UAPA.”

The Court warned the police against using the UAPA offences to encompass conduct that would otherwise be covered by conventional criminal statutes. The Court also observed that, “The term "terrorist act" cannot be applied casually to any criminal acts or omissions that come fully within the definition of conventional offences as defined.”Because 'terrorist activity' is such a broad phrase, its definition must be narrowed. UAPA can only be used to deal with activities that affect India's "defence," not with ordinary crimes that may be dealt with under normal criminal laws.

The Court also added the caution and stated that, “The objective and purpose of the Parliament in establishing a legislation that is supposed to address threats to our Nation's very survival would be undermined if persons were subjected to highly severe and significant criminal penalties engrafted in sections 15, 17, and 18 UAPA on a whim. The indiscriminate use of harsh criminal provisions would only serve to trivialise them.”

Tagged: Right to Protest   Terrorist Act   Delhi HC   Asif Iqbal Tanha   Natasha Narwal   Devangana Kalita   Unlawful Activities Prevention Act   Citizenship Amendment Act   High Court   preliminary examination   Criminal Procedure code   COVID pandemic   constitutional right   fundamental rights   CAA protest  
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