Protest is not terrorist activity: HC

HC: Right to protest can’t be termed terrorist act under UAPA; State blurring lines

HC: Sad day for democracy if difference between protest and terror activity is blurred

Agency Report | New Delhi | 15 June, 2021 | 11:00 PM

The Delhi High Court has held that the fundamental right to protest is not outlawed and cannot be termed as a "terrorist act" within the meaning of the stringent anti-terror law UAPA. The Court observed that the frivolous use of serious penal provisions of the stringent anti-terror law UAPA against people will only trivialise it, as it granted bail to JNU students and Pinjra Tod activists Devangana Kalita and Natasha Narwal and Jamia Millia Islamia student Asif Iqbal Tanha in a case of "larger conspiracy" related to Delhi riots last year.

A bench of Justices Siddharth Mridul and Anup Jairam Bhambhani said: “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.”

The High Court emphasised that offences under the UAPA are treated as extremely serious, inviting very severe punishment; and therefore, the formation of an independent judicial view by the court at every step of the way, is imperative.

The bench added that it is constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the state has blurred the line between the constitutionally guaranteed “right to protest” and “terrorist activity”.

“If such blurring gains traction, democracy would be in peril,” said the bench.

Kalita was arrested for allegedly hatching a conspiracy to orchestrate riots in Delhi, the capital’s first since 1984’s anti-Sikh riots. She was accused of calling people to come out and block roads against the Centre’s contentious Citizenship Amendment Act (CAA). The police claimed this resulted in violence, which broke out between anti- and pro-CAA protesters, leading to death of 53 people and leaving more than 400 injured. On January 29, a trial court dismissed bail applications of Kalita.

Citing allegations contained in the charge sheet and the material adduced therewith, the court said: “We do not think that the accusations made against the appellant under sections 15, 17 and/or 18 of the UAPA are prima facie true.”

The court added that inflammatory speeches, ‘chakka jams’, instigation of women protesters and other actions, to which Kalita was alleged to have been party to, crossed the line of peaceful protests permissible under the constitutional guarantee, but, would yet not amount to commission of a “terrorist act” as understood under the UAPA.

“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 and/or 18 of the UAPA,” said the court.

The High Court stressed that the phrase “terrorist act” cannot be applied in “a cavalier manner”.

Justices Siddharth Mridul and Anup Jairam Bhambhani said: “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.”

Granting bail to Tanha, the court noted although the definition of “terrorist act” in Section 15 of the UAPA is wide and even somewhat vague, the definition must partake of the essential character of terrorism and the phrase cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.

It emphasised that alleging extremely grave and serious penal offences under Sections 15, 17 and 18 of the UAPA against people frivolously would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of the nation.

“Wanton use of serious penal provisions would only trivialise them. Whatever other offence(s) the appellant may or may not have committed, at least on a prima facie view, the State has been unable to persuade us that the accusations against the appellant show commission of offences under Sections 15, 17 or 18 of the UAPA,” observed the court.

While granting bail to Narwal, the High Court noted a closer reading of the allegations made against the appellant shows that no specific, particularised or definite act is attributed to her, 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.

“In our reading of the subject charge sheet and the material included in it, therefore, the allegations made against the appellant are not even borne out from the material on which they are based. The state cannot thwart grant of bail merely by confusing issues,” it said.

The High Court noted that allegations relating to inflammatory speeches, organising of ‘chakka jam’, instigating women to protest and to stock pile various articles shows Narwal 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 of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA,” said the court granting bail to Narwal.

The court passed three separate judgements granting bail to Kalita, Narwal and Tanha in a case of larger conspiracy related to northeast Delhi riots in February last year. (IANS)