By Sushil Silvano, Our Special Correspondent, Edited by Adam Rizvi, The India Observer, TIO: June 15 will go down as a Red Letter Day in the judicial history of India. On this day, three judges of the Delhi High Court called out the misuse of the Unlawful Activities Prevention Act, 1967, and raised the bar for the State to slap the terror tag.
Hardly had the Ink dried on the three bail orders passed by the Delhi High Court on UAPA accused, a Mathura Court (also on June 15) dropped the proceedings against Kerala-based journalist Siddique Kappan and three other persons in connection with a case registered against them initially under charges related to apprehension of breach of peace while they were on their way to Hathras to meet the family of a Dalit woman allegedly raped and murdered last year.
Dreaded UAPA provisions were invoked against them subsequently.
Such good news has come after a long time for lovers of democracy, rule of law, non-violent dissent, and the right to protest. Students, activists, journalists, dissenters, teachers, priests,s and cartoonists have been charged with the draconian provisions of UAPA and in 1948 individuals are presently languishing in Indian jails.
The three orders are perhaps the first instance of a court calling out alleged misuse of the UAPA against individuals in cases that do not necessarily fall in the category of “terrorism” cases.
The orders were delivered by Justices Siddharth Mridul and Anup Jairam Bhambhani.
By ruling that “terrorist activity” cannot be broadly defined to include ordinary penal offenses, three Delhi High Court orders granting bail on June 15 to three student-activists Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha, mark a crucial moment in the democratic, non-violent dissent tradition in India.
Quoting sections of the Unlawful Activities Prevention Act, 1967, and a string of key Supreme Court rulings on terrorism and terror laws, the court reasoned that “the more stringent a penal provision, the more strictly it must be construed”.
This caution is significant given the sharp surge in the state’s use of this provision in a sweeping range of alleged offenses — against tribals in Chhattisgarh, those using social media through proxy servers in Jammu, and Kashmir; and journalists in Manipur and Uttar Pradesh, among others.
According to data provided by the Ministry of Home Affairs in Parliament in March, a total of 1126 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015.
In its order granting bail to Tanha, the court quotes the law itself to define its limits: “…the phrase ‘terrorist act’ has been defined in a very wide and detailed manner within Section 15 itself, in our opinion, the court must be careful in employing the definitional words and phrases used in Section 15 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.”
Section 15 of the UAPA defines “terrorist act” and is punishable with imprisonment for a term of at least five years to life. In case the terrorist act results in death, the punishment is death or imprisonment for life.
Incidentally, Justice Bhambhani was part of the two-judge bench that heard the initial cases related to the 2020 North-East Delhi riots in a midnight hearing along with Justice S.Murlidhar.
The bail orders also refer to how the Supreme Court itself, in the 1994 case of Kartar Singh v State of Punjab, flagged similar concerns against the misuse of another anti-terror law, the Terrorists and Disruptive Activities (Prevention) Act, 1987.
The Delhi Police argued that the terror clause in UAPA can be invoked, not just for the “intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity”, or “the intent to strike terror but the likelihood to strike terror, not just the use of firearms” but also for “causing or likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property.”
Rejecting this interpretation, the court said that it is a “sacrosanct principle of interpretation of penal provisions” that these must be construed strictly and narrowly. This is key to ensuring that a person who was not covered by the legislative ambit does not get roped into a penal provision.
“The extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law,” the court said, citing a 1992 SC ruling in the case of Hitendra Vishnu Thakur v State of Maharashtra.
“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 court said.
The Delhi High Court’s reading of what constitutes terrorist activity led to its conclusion that the state did not make a prima facie case under UAPA against the three accused.
Bail under UAPA can be granted only when the court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true.
The Delhi HC orders place the burden of making out a prima facie case on the police instead of the court itself having to make out a case.
Under UAPA, the maximum stipulated timeframe for filing a charge sheet is 90 days, which may be extended by the court to 180 days. Stiff bail conditions can effectively put the accused under many years of incarceration without trial. While 317 charge sheets were filed under UAPA in 2018, police took 1-2 years to file the charge sheets in over 16 percent of cases. In 10 cases, the charge sheets were filed more than two years after the cases were registered.
According to the National Crime Records Bureau (NCRB), a Central Agency which compiles the data on crimes as reported by States and Union Territories and publishes the same in its annual publication “Crime in India” ( the latest published report is of the year 2018), a total of 922, 901 and 1182 cases were registered and a total of 999, 1554 and 1421 persons were arrested under the Anti-terror law i.e. Unlawful Activities (Prevention) Act, 1967 (UAPA) in India during the year 2016, 2017 and 2018 respectively.
There are a total of 232, 272, and 317 cases, wherein a charge sheet has been filed by the security agencies with respect to the cases registered under UAPA during the years 2016, 2017, and 2018 respectively. Further, in the year 2017 and 2018, the number of charge sheets submitted in one to two years are 92 and 52, and after two years are 31 and 10 respectively.
The sweeping orders of the Delhi High Court have given a ray of hope to 1,948 individuals presently languishing in Indian jails.