The Supreme Court on Friday refused to stay the bail granted by the Delhi High Court to student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, reported Bar and Bench.
The three activists, who were given bail on Tuesday, had been booked under several first information reports in connection to the North East Delhi communal riots of February 2020. They were arrested in May and have spent over a year in jail. Tuesday’s bail was related to an FIR that dealt with the “larger conspiracy” and in which the police invoked provisions of the Unlawful Activities (Prevention) Act.
A day later, the Delhi Police approached the Supreme Court, urging it to immediately stay the order.
During Friday’s hearing, a vacation bench of Justices Hemant Gupta and V Ramasubramanian refused to interfere with the High Court order. The court, however, issued notices to the three activists, observing that the order by a division bench of Justices Siddharth Mridul and Anup J Bhambhani could have “pan-India ramifications”.
“The way the UAPA Act has been interpreted needs to be examined by SC, hence we are issuing notice,” Gupta said.
The judges also said that Tuesday’s order could not be treated as a precedent by any party before any court at this stage.
Solicitor General Tushar Mehta, representing the Delhi Police, told the court that others charged under the UAPA were moving bail pleas based on the High Court order. Mehta also took exception to the High Court order stating that the intention of the Parliament to invoke the UAPA was to deal with matters of defence of India.
“It [HC order] says it [the UAPA] only deals with entry 1 list 1 [Union List of the Constitution],” Mehta said. “So except under this circumstance if its used then its unconstitutional? If I kill someone in murderous attempt, then the UAPA would not apply since I am not a terrorist?”
By “entry 1 list 1”, Mehta was referring to the Union List under the Seventh Schedule of the Constitution, whose first point refers to defence as a Union subject.
“We agree with you,” the bench told Mehta. “The legality of the Act was not challenged before the [High] Court. That’s why we are issuing notice.”
The solicitor general told the court that the UAPA has been “turned upside down” by the High Court in granting bail the activists.
The Supreme Court judges said it was “troubling” that the High Court has gone on to narrow down the scope of the anti-terror law when there was no challenge to the statute, according to Live Law. “It is surprising that in a bail application, there is 100-page judgement discussing the entire law,” the bench said.
While reading some paragraphs from the verdict, Mehta said, “If we go by this judgement, even the lady who assassinated the former prime minister was also protesting”.
In its appeal, the Delhi Police said the High Court had conducted a “mini trial” and “read down” provisions of the anti-terror law. This, the police said, will have “far reaching consequences” for cases registered by the National Investigation Agency and other central agencies.
What the High Court order said
The High Court undertook an analysis of the case documents to determine the prima facie truth and came to a conclusion that no case could be made out under the UAPA. The prosecution has only made inferences about the student three activists using “hyperbolic verbiage”, it added.
“...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 bench said. “If this mindset gains traction, it would be a sad day for democracy.”
Noting that protests against governmental and parliamentary actions were legitimate, the judges stated that though it was expected to be peaceful and non-violent, it was not uncommon for protestors to push the limits permissible in law.
February 2020 North East Delhi violence
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 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.
Kalita and Narwal are members of women’s rights group Pinjra Tod, while Tanha is a student of Jamia Millia Islamia University in Delhi.
All the three activists were named in the main chargesheet filed in the case in September. 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.