Bail Granted: Logical Or Illogical?

Last year, Jawaharlal Nehru University students Natasha Narwal and Devangana Kalita and Students' Islamic Organisation activists Asif Iqbal Tanha were arrested by Delhi police under the UAPA anti-terror law. They were found to have connection with the Delhi riots that broke out last year after the protests against the (CAA) turned violent. Citizenship Amendment Act, 2019 passed by the Parliament of India on 11 December, 2019 has amended the Citizenship Act of 1955.

Under this act, Indian citizens were provided a pathway for persecuted religious minority communities from Afghanistan, Bangladesh and Pakistan who are Hindus, Jains, Buddhists, Sikhs, Parsis or Christian who arrived in India on or before December 21, 2014. This led to the protest in North-east Delhi.

The police charge sheet said that the CAA protests were planned and the organisers engineered the riots to bring a bad name to the government. The three activists named Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha were arrested and accused of being the mastermind of the February 2020 violence in north-east Delhi which left 53 people dead and more than 200 people injured. They were charged in May last year under anti-terror law Unlawful Activities (Prevention) Act. Delhi High Court granted bail on 15 June, 2021 and they were released from Tihar jail after days of bail. 

Background
With the passing of CAA, protests started in different parts of the country. The Citizenship Amendment Act made it easier for non-Muslim immigrants from India's neighbour to become citizen of India. This Act says that the refugees of the six communities will be given Indian citizenship after residing in India for 5 years, instead of 11 years earlier.

The CAA being an exclusionary law, has created genuine fear in the minds of minorities, they remember what happened in Germany with the Jews and in Myanmar to Rohingya Muslims. But the Indian government assured that no Indian citizen would be affected by this bill. In the northeast, people were against the Act's implementation in their areas because they fear that it will cause rush of immigrants; convert thousands of illegal migrants from neighbouring Muslim majority into resident and may alter their demographic, linguistic and cultural uniqueness.

Assam with a valid point, as per the CAB, all the refugees other than Muslims from three neighbouring countries would be granted Indian citizenship. Assam being the largest constituency with almost 33 districts out of which 7 districts comes under CAB, people thought that this will make Assam bear the illegal immigrants on them asking them to minor in their own state.

Thus, soon protests spread in West Bengal. Later, it was cleared that nothing in this section shall apply to tribal areas of Assam, Meghalaya, Mizoram and Tripura as included in the 6th schedule of the constitution, and the areas covered under the inner line notified under Bengal Eastern Frontier regulation, 1873. In rest India, people were protesting against the exclusion of Muslims, alleging it to be against the ethos of the Constitution. In Delhi and other parts of the country, some where it turned out into Hindu-Muslim issues. Protests turned out really violent by damaging public transport and then, violence started in almost every state. Hundreds of students marched from Mandi House to Jantar Mantar to protest against CAA. Students belonging to different universities raised slogans demanding azadi from the new citizenship law and carried posters which read We stand united against CAA''.

Former Jawaharlal Nehru Students Union President N Balaji led the march along with former JNU students Umar Khalid and student leader Kawalpreet Kaur. Khalid was arrested by the special cell in a second FIR on charges of Unlawful Activities (Prevention) Act, in connection with communal riots that broke out. It had come on record that secret officers were set up the most on the protest site, where gathering of people for strategy, speech, slogan and materials were decided.

In secret, the first meeting was held on 23 January at Seelampur which was attended by four people, accused Former JNU student Umar Khalid, Co-Founder of Pinjra, Devagana Kalita and Natasha Narwal and anti-protester Gulfisha Khatur. The three student activists, Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha were arrested by Delhi police and charged with draconian UAPA act. They were released after securing bail from the lower court. Narwal and Kalita were arrested for allegedly being part of a premeditated conspiracy behind the communal violence that broke out in northeast Delhi.

Police said that they immediately arrested two women protesting Natasha and Devagana for their involvement in the riots at the Jafrabad Metro Station where the riots took place. Many students and activists were arrested by Delhi police but they were strongly condemned about these three. However, these three students got bail but Umar Khalid is yet to get bail.

Legal Provision
The Delhi High Court judgment in which they granted bail to three activists who were accused under UAPA Act in Delhi riot case hold significance in the present times because they were incarcerated under the UAPA(Unlawful Activities Prevention Act (UAPA), 1967) Act which usually has been criticized by the civil society as antithetical to constitutional freedom to dissent, rule of law and fair trial. Also the three activists who were accused under this act have been in jail for one years without trial.

The UAPA Act was first enacted in 1967 but later in 2004 and 2008 it was revamped into anti-terror law. Two years back in 2019 the parliament passed the UAPA Act to designate individuals as a terrorist on some specified grounds. In order to deal with the terrorism the parliament take a different route from the original provisions and provided some new rules and regulations which to some extent curtailed the basic constitutional safeguard of the accused under this act.

In the span of 3 years between 2016 and 2019, there were almost a total of 4,231 FIRs filed under various sections of the UAPA, of which 112 cases have resulted in convictions, reported by the National Crime Bureau.

This often number of incidents, acquisition and conviction shows the misuse of this act. Under this act, if you analyze minutely you will find the vague definition of the 'Terrorist'.

Vague Definition of Terrorist Act:
The definition of a Terrorist Act under the UAPA substantially differs from the definition promoted by the United Nations (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.

According to Special Rapporteur to call an offence a Terrorist Act, three elements must be cumulatively present:

1. The means used must be deadly
2. The intent behind the act must be to cause fear amongst the population or to compel a government or international organisation to do or refrain from doing something 
3. The aim must be to further an ideological goal.

But in 2019, when the parliament passed this act with amendments, they changed the definition of the Terrorist. 

According to the new provisions, there is an overbroad and ambiguous definition of a Terrorist Act which includes the death of, or injuries to, any person, damage to any property, etc. Injuries to any person and damage to any property under UAPA Act shows the overbroad and narrowness of the definition.

There are many other provisions which are problematic in nature.

Denial of bail:
The bigger problem with the UAPA Act is denial of bail. Under segment 43(D)(5), which forestalls the arrival of any denounced individual on bail if, police have recorded the charge-sheet that there is sensible justification for accepting that the allegation against such individual is by all appearances valid. 

The impact of Section 43(D)(5) is that once the police choose to charge a person under the UAPA, it turns out to be very hard for bail to be conceded. Bail is a protection and assurance of the sacred right to freedom.

This denial of bail is clearly a gross violation of the constitutional right and liberty.

Pendency of Trails:
Given the condition of equity conveyance framework in India, the pace of pendency at the degree of preliminary is at a normal of 95.5 percent. 
This implies that preliminaries are finished each year in under 5% cases, implying the explanations behind long stretches of undertrial detainment. 


State Overreach:
It additionally incorporates any demonstration that is "prone to undermine" or "liable to strike dread in individuals", giving unbridled capacity to the public authority to mark any conventional resident or lobbyist a psychological oppressor without the genuine commission of these demonstrations. It gives the state authority obscure forces to keep and capture people who it accepts to be enjoyed fear based oppressor exercises. Along these lines, the state gives itself more powers versus singular freedom ensured under Article 21 of the Indian Constitution. 

Sabotaging Federalism:
Some specialists feel that it is against the government structure since it disregards the authority of state police in psychological warfare cases, given that 'Police' is a state subject under the seventh timetable of Indian Constitution.

Therefore drawing the line between individual freedom and state obligation to provide security is a case of classical dilemma. It is up to the state, judiciary, civil society, to strike a balance between constitutional freedom and the imperative of anti-terror activities.

Logic Behind Delhi High Court & Significance
At the point when the Delhi High Court allowed bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha in the Delhi riots cases in which the three activists have been charged under the tough Unlawful Activities (Prevention) Act, it was this straightforward exercise of "lifting the cover" tossed looking into the issue by the arraignment that has prompted a huge point of reference.

At the core of the judgment are two standards fleshed out by the court in self-assured language. 

In the first place, except if the elements of the UAPA are obviously made out in the direct of the charged, dissent and dispute can't be banned by marking them as a psychological oppressor act. Second, UAPA can be applied distinctly in excellent conditions. The draconian law can't be summoned for violations that don't fall under these exemptions, notwithstanding how horrifying they may be. 

By building up these standards and making a few other critical focuses, the Delhi High Court has figured out how to put significant shackles on the maltreatment of the UAPA arrangements. Notwithstanding, even an all around contended request doesn't remove the way that bail under UAPA cases will remain profoundly optional as it would keep on relying upon the individual appointed authority's capacity to address proof introduced in building up a by all appearances truth in the claims.

The court embraced an examination of the case archives to decide the at first sight truth and reached a resolution that no case could be made out under the UAPA. 


The court took a gander at whether the case archives had anything that fulfilled the elements of Section 15, 17 and 18 of the UAPA. Segment 15 identifies with the commission of a psychological oppressor act, Section 17 arrangements with raising assets for a fear monger act and Section 18 identifies with an intrigue to submit a psychological oppressor act or an activity preliminary for a fear monger act.

The court said that in establishing a prima facie case under these provisions, there have to be specific or particularised allegations. It notes in the bail order that the prosecution has only made inferences about three activists, using hyperbolic verbiage.
 
Conclusion
In the Natasha Narwal case, no specific, particularised or definite act was attributed to the appellant, apart from the fact that she engaged herself in organising Anti-CAA and Anti-NRC protests when riots and violence broke out in specific components of North-East Delhi. State cannot thwart grant bail simply by confusing problems.

Allegations relating to inflammatory speeches, organising of Chakka Jaam, instigating women to protest and stock-pile various articles and other similar allegations, at worst, were evidence that the appellant participated in organising protest. However, no conclusion of a specific or selected allegation that appellant incited violence, what to speak of committing a coercion act or a conspiracy or act propaedeutic to the commission of a terrorist act as understood within the UAPA. The appellant was granted regular bail subject to conditions.

While in the Devangana case, Right to Protest is not outlawed and cannot be termed as a 'terrorist act' within the meaning of UAPA, unless ingredients of offences under Sections 15,17 and 18 of the UAPA are discernible from factual allegations. Sheared off the superfluous verbiage, image and also the stretched inferences drawn from them by the prosecuting agency, the factual allegations created against the appellant do not prima facie disclose the commission of any offence under Sections 15, 17 and/or 18 of the UAPA.

It appeared that in its anxiety to suppress dissent and within the morbid worry that matters could get out of hand, the State has blurred the road between the constitutionally guaranteed 'right to protest' and 'terrorist activity. If such blurring gains traction, democracy would be in peril. Appellant was granted regular bail subject to conditions mentioned above.

Reference:

• https://scroll.in/article/997631/granting-bail-to-activists-delhi-hc-exposes-abuse-of-uapa-but-flaws-inherent-in-the-law-remain
• https://www.drishtiias.com/daily-updates/daily-news-editorials/uapa-constitutional-freedom
• https://www.thequint.com/news/india/delhi-riots-natasha-narwal-devangana-kalita-asif-iqbal-tanha-granted-bail-uapa#read-more

Written By:

1. Shreyash Tripathi, Student at Lloyd Law College, Gr. Noida
2. Yashika Jha, Student at Lloyd Law College, Gr. Noida