Narwal, Kalita and Tanha have also filed their caveats in the top court to ascertain no judicial orders are passed in the appeals without hearing them (Photo by Raj K Raj / Hindustan Times)(Raj K Raj/HT Photo)
Narwal, Kalita and Tanha have also filed their caveats in the top court to ascertain no judicial orders are passed in the appeals without hearing them (Photo by Raj K Raj / Hindustan Times)(Raj K Raj/HT Photo)

Supreme Court to hear pleas against activists’ bail release today

  • The bench of justices Hemant Gupta and V Ramasubramanian will consider three separate appeals moved by the Delhi Police on Wednesday to contest the high court orders
By Utkarsh Anand, New Delhi
PUBLISHED ON JUN 18, 2021 06:11 AM IST

The Supreme Court will take up on Friday petitions by the Delhi Police for an immediate stay of Delhi high court orders giving bail to three student activists — Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha — arrested in May last year for allegedly instigating the February 2020 Delhi riots.

The bench of justices Hemant Gupta and V Ramasubramanian will consider three separate appeals moved by the Delhi Police on Wednesday to contest the high court orders, which have indicted the police for invoking the anti-terror law against the students in their “anxiety to suppress dissent”.

Police approached the apex court less than 24 hours after the bail orders, and also pressed for an urgent hearing on the ground that a stay on bail orders was imminent since persons accused of serious offences under Unlawful Activities (Prevention) Act (UAPA) were to be released.

However, the three student activists were released from prison on Thursday evening, and the development virtually negates the rationale behind the rush shown by Delhi Police in moving the Supreme Court and asking for a stay.

Till the time the Supreme Court finally decides the appeals and accepts the Delhi Police’s request for setting aside the bail orders, the three will not be sent back to the jail. As a common principle of bail jurisprudence, once an accused gets released following a bail order, they cannot be sent back to jail until the bail order is not finally quashed on merits. No interim order, including an order of stay, impacts the liberty of the accused who was let out after a court of competent jurisdiction applied its mind and granted bail. The superior court must allow the appeal against the order of bail, and cancel the bail for an accused to be remanded back to prison.

Therefore, even if the Supreme Court were to stay the Delhi high court order and the observation made therein with regard to the UAPA after hearing the Delhi Police’s appeals on Friday, the three student activists will remain out on bail for the time being.

Narwal, Kalita and Tanha have also filed their caveats in the top court to ascertain no judicial orders are passed in the appeals without hearing them.

Meanwhile, the police’s appeals claimed that the high court orders were not only “perverse” but also based mainly on a “social media narrative”. They added that the high court overlooked evidence on record and made “insinuation” against the state going beyond the remit of the bail pleas.

Delhi Police further contended that bail for Jawarharlal Nehru University (JNU) students Narwal and Kalita, and Jamia Millia Islamia student Tanha was premised “on a preconceived and a completely erroneous illusion”. The judicial scrutiny by the high court, the appeals said, seemed to have been not to ascertain whether the evidence on record showed a prima facie case (under the anti-terror UAPA law) but to establish that it was a case of a protest by students and suppression of dissent by the government of the day. This, the plea said, was “without any foundation and appears to be based more on the social media narrative than the evidence gathered and elaborated in the charge sheet”.

Challenging the three separate but similarly worded bail orders, the police said the high court “erroneously” interpreted certain provisions of the UAPA and watered down its provisions that will have far-reaching consequences for cases before investigating agencies.

The high court order was a scathing indictment of the Delhi Police, terming the charges against the student activists “stretched”, “verbiage”, and “hyperbole” while adding that the state may have, by going after the protesters, blurred the line between the “right to protest” and “terrorist activity”.

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