DATE OF THE ORDER:
15th June 2021
JUDGES:
Justice Siddharth Mridul and Justice Anup Jairam Bhambhani
PARTIES:
Asif Iqbal Tanha (Appellant)
State of NCT of Delhi (Respondent)
SUBJECT
The court in the following case studied the scope and ambit of UAPA. The issue before the court was whether offences under sections 15 & 18 of the UAPA is made out against the appellant?
OVERVIEW
- Iqbal Tanhaunder section 21(4) of the National Investigation Agency Act 2008 challenges the order passed by the Special Court whereby the appellant’s second bail application was rejected.
- Iqbal, who is in judicial custody is registered under sections 147, 148,149 and 120B of IPC in connection with protests held in Delhi in 2019 against the CAA. Other sections were also added in the FIR.
- The allegations against the appellant are as follows:
a. That he is one of the main conspirator and instigator behind the riots in Delhi
b. That he is a member of the Student Islamic Organization
c. That the appellant, along with other co-accused formed the Jamia Co-ordination Committee to protest against the CAA
d. That a JCC WhatsApp group was formed to manage the protest sites in Delhi and the JCC office was also set up.
e. That the members of JCC and Pinjra Tod decided to hold a chakkajamin North-East Delhi
f. That the women and children were mobilized to stop the police from using the force against them
g. That the appellant along with co-accused were active participants in the protest and their motive was to create a riot which resulted in the death of several people in Delhi
h. That he instigated communal violence and created unrest in the society
i. that the appellant’s rolehas been described in great detail by the witnesses
Learned counsel for the appellant had made the following submissions:
a. that the subject FIR dated 6th March 2020 was initially registered under sections 147,148,149 and 120B IPC, which are all bailable offences. Later offences under the UAPA were added to the subject FIR.
b. that no offence is made out against the appellant that would warrant his continued custody
c. that no offence under sections 15& 18 of the UAPA is made out against the appellant. Consequently, the provisions contained in section 43D(5) of the UAPA against the grant of bail are not attracted at all
d. that serious as these allegations may be, they are still only to be dealt with under the ordinary penal law and not UAPA
LEGAL PROVISIONS
- 21(4) of the National Investigation Agency Act 2008- An appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
- Section 43D(5) in The UAPA- Modified application of certain provisions of the Code
- Section 15 of the UAPA- Terrorist act
- Section 18 of the UAPA- Punishment for conspiracy
ANALYSIS OF THE ORDER
- The state studied the scope and ambit of UAPA and gave the following observations:
a. The appellant isa member of the SIO and the JCC neither of which is a banned organisation or terrorist organisation listed in the 1st Schedule of the UAPA
b. Anti-CAA protest extended to the whole of Delhi and the charge-sheet shows that the protest was restricted to North-East Delhi. Therefore, it would be a stretch to say that it affected the community at large for it to qualify as an act of terror
c. There is no allegation that the arms and ammunition, that were to be used as weapons, were recovered. Since there is no allegation of that therefore the question of any presumption arising under section 43E does not arise
d. Section 15 of UAPA includes not just acts committed with the purpose to endanger a nation's foundations, but also acts that are "likely to endanger" such foundations. The protest by a group of students is not a threat to the nation.
e. The protest of which the appellant was part of was neither banned nor outlawed. It was monitored by law enforcement agencies
- The State stated that they believe that these are merely claims at this time, and are not convinced prima facie of the reality of the claims made.
- The court granted regular bail to the appellant, subject to the following conditions:
a. The appellant shall provide a personal bond of Rs. 50,000/- along with sureties
b. The appellant shall provide a cellphone number on which he may be contacted to the Investigating Officer
c. The appellant shallreside at his place of residence as per prison records and shall inform the investigating officer if he changes the residence.
d. Appellant shall surrender his passport and shall not travel out of the country without prior permission
e. The appellant shall not contact or offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of the case.
CONCLUSION
The government has used strict laws like sedition and criminal defamation to crush criticism on several occasions. These laws are ambiguously worded and too broad, and they have been used as political tools against people who have demonstrated a movement toward "political crimes."
The UAPA is primarily an anti-terror law that is only intended to be used in extreme situations. However, it is being used indiscriminately by the government. According to the National Crime Records Bureau (NCRB), the number of cases filed under the UAPA increased the most in 2019.
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