Right to protest is not a terror act: Delhi high court | Latest News India - Hindustan Times

Right to protest is not a terror act: Delhi high court

ByRicha Banka, New Delhi
Jun 16, 2021 12:30 AM IST

A bench of justices Siddharth Mridul and Anup J Bhambhani held that the foundations of this nation stood on surer footing than those likely to be shaken by a protest, however vicious, organised by college students who operated from the confines of a university.

The Delhi high court on Tuesday granted bail to three student activists arrested for allegedly instigating the February 2020 Delhi riots, terming the charges against them “stretched”, “verbiage”, and “hyperbole” and saying that the state may have, by going after the protestors, blurred the line between the “right to protest” and “terrorist activity”.

File photo anti-CAA protests in Delhi.(PTI)
File photo anti-CAA protests in Delhi.(PTI)

Delhi Police is likely to challenge the order in the Supreme Court.

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A bench of justices Siddharth Mridul and Anup J Bhambhani held that the foundations of this nation stood on surer footing than those likely to be shaken by a protest, however vicious, organised by college students who operated from the confines of a university.

In three separate but similarly worded orders, the court granted bail to Jawarharlal Nehru University (JNU) students Natasha Narwal and Devangana Kalita, and Jamia Millia Islamia student Asif Iqbal Tanha, noting that the allegations against them do not show that they committed any crime under the Unlawful Activities (Prevention) Act (UAPA).

“We are 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’. If such blurring gains traction, democracy will be in peril,” said the bench in the judgment granting bail to Kalita.

The bench commented that “ the right to protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of the UAPA”.

The three are set to walk out of the prison after more than a year’s incarceration in connection to the riots case. Both Narwal and Kalita, members of NGO Pinjra Tod, were booked in three cases and were arrested May 29 last year for allegedly hatching a conspiracy along with the other co-accused to orchestrate the riots.

Communal riots broke out in north east Delhi in February, 2020, leaving 53 people dead and over 400 injured. Over 750 FIRs were filed in connection to the riots and several people were arrested. In September 2020, the police filed its first charge sheet running into 17,500 pages charging 15 accused of allegedly hatching a conspiracy to orchestrate riots. The charge sheet was filed under various sections including rioting, unlawful assembly, conspiracy, sedition, promoting disharmony between religions and relevant sections of the Epidemic Act.

The specific charges against the three in this case were that they orchestrated the blocking of roads in the area. Narwal and Kalita have already been granted bail in the two other cases, which accuse them of unlawful assembly and inciting the riots. Tanha, has already received bail in the other case where he is an accused; that alleges that he was part of a “premeditated conspiracy” to orchestrate the riots.

However, they were not released on Tuesday for want of verification of sureties by the trial court judge. “They are not coming out today as judge wants to verify sureties for their bail. We have been asked to come again tomorrow,” a statement from activist group Pinjra Tod, of which Narwal and Kalita are members said on Tuesday evening.

The Delhi Police have decided to challenge the high court order. “We are not satisfied with the interpretation of the provisions of Unlawful Activities Prevention Act by the Hon’ble High Court in a matter concerned with grant of Bail. We are proceeding with filing of a Special Leave Petition before the Honble Supreme Court of India said DCP Chinmoy Biswal, spokesperson, Delhi Police.

The high court, in its orders, has criticised the invocation of the anti-terror law against the student activists by the Delhi Police. “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 18 of the UAPA,” read one of the orders. The sections relate to involvement in activities with intent to threaten or likely to threaten the unity, integrity, security or ­sovereignty of India or with intent to strike terror.

Citing the Supreme Court’s take on protests in 2018, in the Mazdoor Kisan Shakti Sangathan vs Union of India and Anrcase, the court said that uprisings against governmental and parliamentary actions are legitimate; and though such protests are expected to be peaceful and non-violent, it is not uncommon for protesters to push the limits permissible in law

“Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams (blockades), instigation of women protesters and other actions…crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet 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 the UAPA,” the bench added.

The bench was emphatic that there was “absolutely nothing” showing the possible commission of a terrorist act; or an act of raising funds to commit a terrorist act; or an act of conspiracy to commit a terrorist act.

“Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA,” it said.

Cautioning against the frivolously invocation of the “extremely grave and serious penal provisions” under UAPA, the court added that such an approach “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 trivialise them... 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 bench added.

The court also said that it would be “a stretch” to “say that the protest affected the community at large for it to qualify as an act of terror.”

Citing the delay in trial caused by the coronavirus outbreak, the court pointed out that it was hardly likely that the trial will proceed, much less conclude anytime soon, particularly when there were as many as 740 prosecution witnesses.

“Should this court then wait until the appellant 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? We hardly think that would be the desirable course of action,” it noted while granting bail to the trio.

Considering the educational background, profile and their positions in life, the court said, there is no reason to suspect or apprehend that the accused were either a flight risk or that they will tamper with the evidence, the court added.

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