HC grants bail to Kalita, 2 others in Delhi riots case; says protest is not terrorism

Stating that the right to protest is a fundamental right and cannot be called a terrorist act, the Delhi High Court on Tuesday (June 15) granted bail to Jawaharlal Nehru University students Natasha Narwal and Devangana Kalita and Jamia Millia Islamia student Asif Iqbal Tanha, all who were arrested under Unlawful Activities (Prevention) Act in connection with the north-east Delhi riots last year.

A division bench said the court must be careful in employing the definitional words and phrases used in the anti-terror law UAPA “in their 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 court said the state, in its “anxiety to suppress dissent and in the morbid fear that matters may get out of hand”, has blurred the line between the constitutionally guaranteed right to protest and terrorist activity.

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“If such blurring gains traction, democracy would be in peril,” a bench of Justices Siddharth Mridul and Anup Jairam Bhambhani said in its 83-page judgement.

The court also clarified that the right to protest peacefully without arms is a fundamental right under Article 19(1)(b) of the Constitution and has not been outlawed yet.

“Considering however, that the right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1)(b) of our Constitution, surely the right to protest is not outlawed and cannot be termed as a terrorist act within the meaning of the UAPA, unless of course the ingredients of the offences under sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in charge sheet and the material filed therewith,” it said.

Kalita was arrested along with others in May last year under the stringent Unlawful Activities (Prevention) Act (UAPA) in connection with a case of larger conspiracy related to the riots. The high court, by separate judgements, also granted bail to another JNU student Natasha Narwal and Jamial Millia Islamia student Asif Iqbal Tanha in the UAPA case.

While dealing with Kalita’s case, the division bench referred to its judgement in Tanha’s case and said the phrase terrorist act has been given a very wide and detailed definition in section 15 of the UAPA. Referring to a Supreme Court verdict, the high court said that the extent and reach of a terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order.

“The Supreme Court says that the effect of terrorist activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law,” it said.

The high court said the intent and purpose of Parliament in enacting the UAPA and in amending it in 2004 and 2008 to bring terrorist activity within its scope, was and could only have been, to deal with matters of profound impact on the Defence of India, nothing more and nothing less. It was not the intent, nor purpose 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 of our Constitution, the bench said.

The high court clarified that in the present case, it was not deciding if the protests, in which Kalita is alleged to have been involved, were within the constitutionally guaranteed right to assembly, or whether they crossed the limit of what is permissible under Article 19(1)(a) and 19(1)(b) and became non-peaceful protests.

“However, what we find is that, for one there is nothing to say that the government had prohibited the protest in the first instance. What we know is that offences, if any, that are alleged to have been committed by reason of the protests having been turned non-peaceful, are subject matter of FIR Nos. 48/2020 and 50/2020, in which the appellant is one of the accused and in which the appellant has been admitted to bail and will face trial in due course. 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,” the bench said.

“Prima-facie, the high court was 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. In our view, the subject charge-sheet and the material filed therewith does not contain any specific, particularised, factual allegations that would make-out the ingredients of the offences under sections 15, 17 or 18 UAPA,” the bench said.

The bench added that no offence under sections 15, 17 or 18 UAPA is made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution.

The court also asked Narwal, Kalita and Tanha to surrender their passports while directing them to furnish a personal bond of ₹50,000 each along with sureties of the said amount.

The court said that the three accused will not get involved in any unlawful activities and stay at the address mentioned in the prison records.

Around 53 people had died and more than 200 injured in communal riots that broke out in north-east Delhi on February 24 last year following violence over protests against and in favour of the Citizenship Amendment Act.

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Tanha, Narwal and Kalita were arrested in May last year in connection with the riots.

While Tanha had challenged a trial court’s October 26, 2020 order which had scrapped his bail plea, Kalita and Narwal too had challenged a January 28 order of the trial court which denied them bail.

(With inputs from agencies)