While granting bail to student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, the Delhi High Court on Tuesday made some sharp observations on the Unlawful Activities (Prevention) Act, its interpretation by the government and the Delhi Police’s decision to file the case under the stringent law.

The division bench of Justices Siddharth Mridul and Anup J Bhambhani passed three separate orders for granting bail to the accused. In its bail order for Tanha, the court noted that charging people with UAPA “frivolously” will undermine the “intent and purpose” of the law. In Narwal’s case, the court highlighted upon the difference between right to protest and terrorist activities.

Here are some excerpts:

Natasha Narwal order

Narwal, a PhD scholar at Jawaharlal Nehru University and a member of women’s rights group Pinjra Tod, was accused of instigating local population, particularly women, in Muslim-dominated areas in Delhi to protest against the Citizenship Amendment Act.

In its order, the court criticised the government’s actions in “suppressing dissent”.

“...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,” the court said in its order. “If this mindset gains traction, it would be a sad day for democracy.”

It also mentioned that actions such as making inflammatory speeches and organising chakka jams (road blockade) are not uncommon when there is “widespread opposition to governmental or parliamentary actions”.

Commenting on the charges of the UAPA slapped by Delhi Police against Narwal, the court said there was nothing in the chargesheet to show commission of “terrorist act” under Section 15 of the law, “raising funds” to commit terrorist act under Section 17, and an “act of conspiracy” under Section 18.

The court also upheld the citizens’ right to protest, suggesting the Government cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Article 19(1)(a) and 19(1)(b) [freedom of speech and expression and reasonable restrictions on it] of the Constitution.”

Asif Iqbal Tanha order

In Tanha’s case too, the court order mentioned that he was not guilty under Section 15,17 and 18 of the UAPA. In fact, the court warned against indiscriminate use of the charges. The court also held that the definition of “terrorist act” under Section 15 of the law is “wide and even somewhat vague”.

“Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our nation,” the court said. “Wanton use of serious penal provisions would only trivialise them.”

It added:

“We are of the view that 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.”

— Delhi HC in Asif Tanha’s bail order.

The court also took exception to Delhi Police’s submission that trial in the case was yet to be completed and “some 740 prosecution witnesses” were to be examined.

“Should this court wait till the appellant’s right to a speedy trial guaranteed under Article 21 [right to life and liberty] of the Constitution is fully and completely negated, before it steps in and wakes up to such violation?” the court remarked.

Devangana Kalita order

In Kalita’s bail order, the court dismissed the charges under the UAPA and took exception to the conclusions drawn by the Delhi Police on basis of the evidence presented to the court to allege that the activist was a “co-conspirator” in the case.

“In our opinion, shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them [material evidences] by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence,” the order noted.

Further, the court observed that the “educational background, profile and position in life” of Kalita did not provide any reason to suspect her as a flight risk, or someone who would indulge in evidence tampering or witness intimidation.

The case

Clashes had broken out between supporters of the Citizenship Amendment Act and those opposing it between February 23 and 26 last year in North East Delhi, killing at least 53 people and injuring hundreds. The police were accused of either inaction or complicity in some instances of violence, mostly in Muslim neighbourhoods. The violence was the worst in Delhi since the anti-Sikh riots of 1984.

The Delhi Police claim that the violence was part of a larger conspiracy to defame Prime Minister Narendra Modi’s government and was planned by those who organised the protests against the amended Citizenship Amendment Act. They also claimed the protestors had secessionist motives and were using “the facade of civil disobedience” to destabilise the government. The police have arrested several activists and students based on these “conspiracy” charges.

Tanha, Kalita and Narwal were among those who were named in the main chargesheet filed in the case in September. They have been in custody since May 2020. A supplementary chargesheet was filed in November against activist Umar Khalid and Jawaharlal Nehru University student Sharjeel Imam in the alleged conspiracy behind the communal violence.