Delhi High Court order on UAPA: Warning against wanton use of penal provisions

First, the Karnataka High  Court and then the Delhi High Court  through their path breaking bail orders in separate cases registered under various sections of the Unlawful Activities Prevention Act 1967 (UAPA) have given a much desired boost towards protection of the fundamental  rights guaranteed by the Constitution of India. These rights have been blatantly violated by various state and central police agencies by falsely implicating people protesting against oppressive actions of various state agencies in “terrorism” related sections of the UAPA.

There has been 72 per cent increase in the number of people arrested  in the country under various sections of the anti-terror law, the UAPA in 2019, compared to the number of people arrested under the law in 2015. While 897 people were arrested in2015 under UAPA, their number went up to 1948 in 2019. The highest number of arrests in 2019 was made in Uttar Pradesh 498,  Manipur 386, Tamil Nadu 308, Jammu and Kashmir 227  and  Jharkhnd 202. A total of 1226  UAPA  cases have been registered in 2019 and statewise  Manipur registered 306, Tamil Nadu 270, Jammu and Kashmir 255, Jarkhand 105 and Assam 87.

Granting statutory bail to the 115 people arrested in connection with the March 2020 Bangalore riot Justice Viswjith Shetty of the Karnataka High Court on 10 June 2021 said “The fundamental right of an individual recognized under Article 21 of the constitution of India cannot be defeated other than in accordance with law. Since the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right has accrued to the petitioners immediately after the completion of 90 days period which right has been availed by them by filing an application under section  167 (2) of the C ode seeking statutory (default) bail  and also offering surety cannot be denied to the petitioners.”

The Delhi High Court’s June 15 meticulously written bail orders in the Unlawful Activities  Prevention Act (UAPA)  cases against the three student activists should serve as a stern warning to the police all over India  against the wanton use of the penal provisions of the  draconian Act. Though the Supreme Court in an unprecedented and surprise order has kept the Delhi High Court order in suspended animation  till further orders  one hopes  it will serve as a precedent to bring relief to more than 5000 people arrested under various sections of the UAPA and  languishing in jails.

Justices Sidharth Mridal and Anup J.  Bhambani in their order granting bail to Natash Narwal in the Delhi riots conspiracy case under section 15, 17 and 18 of the UAPA said, “We are constrained to express that 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 blurred. If this mindset gains traction it would be a sad day for democracy.”

Quoting Supreme Court order in the Hitendra Vishnu  (TADA case) Justice  Bhambani said that “it is not the intention of the Legislature  that every criminal should be tried under TADA,  where the fall out of his activity does not extend beyond the normal frontiers  of the ordinary criminal activity. Every terrorist may be a criminal but every criminal cannot be given  the tag of a ” terrorist” only to set in motion the more stringent  provisions of TADA”.

“Our jurisprudence therefore dictates that where a provision of law which contains serious penal   consequences is vague or widely worded , such provision must be construed narrowly to bring it within the constitutional framework and most importantly MUST BE APPLIED IN A JUST AND FAIR WAY lest it unjustly sucks within its ambit persons whom the Legislature never intended to punish . Where the  court finds that an act or omission  is adequately addressed and dealt with by the ordinary penal law of the land the court must not countenance a State agency ‘ crying wolf’ the order said.

Alleging extremely grave and serious penal  offences  under sections  15, 17 and 18 of UAPA against people frivolously 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. Wanton use of serious penal provisions would only trivialize them the  order warned.

The High Court further pointed out that 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 offences under sections 15, 17 and 18 of the UAPA are clearly discernable from the factual allegations contained in the charge sheet  and the material filed therewith. Mere use of alarming and hyperbolic verbiage in the charge sheet will not convince the court, it added.

Upon closer scrutiny of the submissions made on behalf of the state we find that the submissions are based  upon inferences drawn by the prosecuting agency and not upon factual allegations. In this context the High Court very pertinently noted that the CAA protests were not outlawed or banned. Also the student organizations which the accused are leading are not banned organizations.

Making inflammatory speeches, organising chakkajams, instigating women protesters would not amount to commission of a terrorist act or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under UAPA,  the court held.

The judges further said that the foundations of our nation stand on surer footing than  likely to be shaken by a protest, however vicious organized by a tribe of college students or other persons operating as a coordination committee from the confines of a University situated in the heart of New Delhi.

While the court orders are extremely important to protect fundamental rights of the citizens we will have to device ways to make the police and the prosecuting agencies accountable for the misuse of the penal provisions of the terrorist law. Not only should the police and the prosecuting officials who deliberately make  false submissions punished but the victims who undergo  undeserving  torture and  incarceration should be adequately compensated.