Delhi HC States ‘Terrorist Acts’ Under UAPA Deals With Matters Related To India’s Defence; Not Ordinary Law and Order Problems

What Is The Issue

• The Delhi High Court while delivering a judgment defining the limits of the otherwise vague Section 15 of the Unlawful Activities (Prevention) Act, 1967, (UAPA).A bench comprising Justices Sidharth Mridul and Anup Jairam Bhambhani were granting bail to Delhi-riots accused Asif Iqbal Tanha, Natasha Narwal, and Devangana Kalita, who faced charges for being part of a conspiracy during the anti-Citizenship (Amendment) Act, 2019 protests which turned violent and resulted in many deaths across North-East Delhi.
• The accused apart from facing charges under the Indian Penal Code also faced charges under Chapter IV of the UAPA under Sections 15, 17, and 18. While S. 15 engrafts the offense of 'terrorist act', S. 17 sets out the punishment for raising funds for committing a terrorist act, and S. 18 engrafts the offense of 'punishment for conspiracy.
• The Court stated that based on the assessment of the facts of the case, while granting bail to the three, not only did hold that prima facie of the charges does not seem to apply to the acts committed by them. The court while giving the verdict also went on to lay crucial parameters on the application and boundaries of section 15, 17, 18 of the UAPA.

Observations Of The Court

• Delhi High Court while discussing this case observed that the right to protest is a fundamental right and cannot be termed as a “terrorist act” even though the definition of ‘terrorist act’ given in the UAPA is very wide and vague. It stated that the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts that falls within the definition of conventional offenses.
• The court noted that it must be careful in employing the definitional words and phrases used in section 15 of the UAPA act in their absolute literal sense or use them lightly in a manner that would trivialize the extremely heinous offense of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime.
• Throughout the proceedings, the state heavily relied upon the Supreme Court’s judgment in the case of National Investigation Agency vs Zahoor Ahmad Shah Watali, 2019to argue that the regular bail provision under the Criminal Procedure Code cannot be applied in UAPA cases. As per the state, the bail applications of Pinjra Tod protesters should be dealt with under the stringent section 43D of UAPA, which provides additional restrictions on bail.
• In the Watali judgment, the Supreme Court had ruled that while adjudicating bail under section 43D of UAPA, the courts need not go into the admissibility of the evidence, and their reasoning must be based on the evidence produced in the police report.
• The High Court stated that the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring the terrorist activity within its scope, was, and could only have been, to deal with matters of profound impact on the ‘Defense of India’, nothing more and nothing less.
• The High Court clarified that in the present case, it was not deciding whether the protests in which the accused was allegedly involved were within their constitutional 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, the court stated that what we find is that there is nothing to say that the government had prohibited the protest in the first instance. What we know is that offenses, if any, that are alleged to have been committed because of the protests having been turned non-peaceful, are the subject matter of FIR, 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.
• The bench noted that there is absolutely nothing in the subject charge-sheet, by way of any specific or particularized allegation, that indicates the possible commission of a ‘terrorist act’ under section 15 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 of the UAPA.
• 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 offenses defined under Section 15, 17, or 18 of the UAPA.
• Thus, the court was of the view that the subject charge-sheet and the material filed therewith does not contain any specific, particularized, factual allegations that would make out the ingredients of the offenses under sections 15, 17, or 18 of the UAPA.

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