A division bench of Justices Siddharth Mridul and Anup J Bhambhani didn’t mince words in three separate bail orders, saying it was “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’.”
The court cautioned that “if this mindset gains traction, it would be a sad day for democracy, which would be in peril” and highlighted the lack of evidence to back Delhi police’s charges under the anti-terror law UAPA against JNU students Devangana Kalita and Natasha Narwal and Jamia Millia Islamia student Asif Iqbal Tanha that they were conspirators and instigators of the riots last year.
It noted that the “chargesheet and the material included in it” showed that “prima facie the allegations made against the appellant are not even borne out from the material on which they are based”.
The bench said that where the court finds that an act of omission is adequately addressed and dealt with by the ordinary penal law of the land, it must not countenance a state agency “crying wolf ”.
The right to protest peacefully is a fundamental feature of any democracy and a constitutional right in India. The high court has rightly reminded us all of this basic tenet. The police, who often slap outrageous charges on protestors, should pay heed to this.
Having given our anxious consideration to this aspect of “likelihood” of threat and terror, we are of the view that the foundations of our nation stand on surer footing than to be likely to be shaken (sic) by a protest, however vicious, organised by a tribe of college students or other persns, operating as a coordination committee from the confines of a university situated in the heart of Delhi,” said the bench.
“We are afraid that in our opinion, shorn of 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 18of the UAPA,” said the bench. Ordering the immediate release of the three students, the HC reminded the government that “the 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” and pointed out that “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 the chargesheet and the material filed”.
In the case of Kalita, the court said that as a member of certain women’s rights organisations and other groups, she did participate and help organise protests against the CAA and NRC in Delhi. However, it found absolutely nothing in the chargesheet by way of any specific allegation to show the possible commission of a “terrorist act” or an act of “raising funds” to commit a terror act and an act of “conspiracy” to commit or an “act preparatory” to commit a terrorist act to attract UAPA provisions. The HC’s conclusions were on similar lines in the order granting bail to Narwal and Tanha. On the allegations of organising road blockades etc, the HC highlighted that “making of inflammatory speeches, organising chakka jams and such like actions are not uncommon when there is widespread opposition to governmental or parliamentary actions”.
The court underlined that though the chargesheet was filed on September 16, 2020, there are 740 prosecution witnesses and the trial is yet to begin. “Should this court then wait until the appellant (Tanha) has languished in prison for a long enough time to be able to see that it will be impossible to complete the deposition of 740 prosecution witnesses in any foreseeable future, especially in view of the prevailing pandemic when all proceedings in the trial are effectively stalled? Should this court wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated before it steps in and wakes up to such violation?” it wondered, in response to the prosecution stand opposing bail.