Right to protest peacefully not outlawed and not a ‘terrorist act’; inflammatory speeches, chakka-jams not offence under UAPA: Delhi High Court

The Delhi High Court while granting bail to Devangana Kalita and Natasha Narwal in Delhi riots case under the Unlawful Activities (Prevention) Act (UAPA) on Tuesday, observed that the State, in its anxiety to suppress dissent, blurred the line between the constitutionally guaranteed right to protest and terrorist activity (Devangana Kalita vs State) (Natasha Narwal vs State). .If such 'blurring' gains traction, democracy would be in peril, a Bench of Justices Siddharth Mridul and Anup J Bhambhani cautioned.."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 would be in peril," the order said. .The Court underscored that right to protest peacefully without arms is a fundamental right under Article 19(1)(b) of the Constitution and has not been outlawed yet. "Considering however, that the right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1)(b) of our Constitution, surely 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 the offences under sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in chargesheet and the material filed therewith," the judgment said. .The Court acknowledged that making of inflammatory speeches, organising chakka-jams etc were common in the face of widespread opposition to governmental or parliamentary actions. .Even if such activities cross the permissible line of peaceful protests, it would still 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 Court held. ."Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, 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 Court said. .[DELHI RIOTS] Foundations of our nation can't be shaken by protest by college students; UAPA not for usual offences: Delhi High Court .As was held in Asif Iqbal Tanha's case, the Court reiterated that the phrase ‘terrorist act’ under UAPA could not be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the Indian Penal Code.."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 remarked..While deciding Natasha's bail, the Court observed that the allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles etc "at worst, are evidence" of her participation in the protests. .They were, however, not material to say that she incited violence or committed a "terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA". .Similarly, for Kalita, the Court opined that that "shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency", as well as the factual allegations, did not disclose any prima facie commission of any offence under sections 15, 17 and/or 18 UAPA. .Whether the protests crossed the limit of what is permissible under Article 19(1)(a) and 19(1)(b) and became non-peaceful protests were subject matter of another FIR, in which both the accused were already on bail, the Court noted..Since it was found that prima facie, commission of offences under UAPA was not made out, the Court opined that it was not bound to test the stringent conditionalities contained in section 43D(5) of UAPA for grant of bail. .In Kalita's bail order, the Court also "debunked" the "misconception" that merely because Section 45 UAPA mandated an independent review of the evidence gathered by an independent authority appointed by the Central government, a Court need not form its own independent judicial view on any offences being made out under the Act in the chargesheet. ."In fact we are of the view that the purported independent review of evidence by a purported independent authority; and the fact that the Central Government has, based thereupon, granted sanction of prosecution for offences under Chapters IV or VI of the UAPA, must never enter the consideration of the court when deciding whether the ingredients of any offence under the UAPA are disclosed in the charge-sheet..We must point-out that offences under the UAPA are treated as extremely serious, inviting very severe punishment; and therefore, the formation of an independent judicial view by the court at every step of the way, is imperative.", the Court held. .The Court also held that the grant of bail could not be thwarted merely by asserting that an offence is grave. ."We must also never forget the profound insight of V.R. Krishna Iyer, J., when he said that the consequences of pre-trial detention are grave; that by being kept in custody, an undertrial accused, though presumed innocent, is subjected to psychological and physical deprivations of jail life; that the accused is also prevented from contributing to the preparation of the defence; and that the burden of pre-trial detention frequently falls heavily on the innocent members of the family," the Court noted. .Advocates Adit S Pujari, Tusharika Mattoo, Kunal Negi appeared for Kalita and Narwal. State was represented by SPPs Amit Mahajan, Amit Prasad, Rajat Nair..[Read Judgement].[BREAKING] Delhi High Court grants bail to Asif Iqbal Tanha, Devangana Kalita, Natasha Narwal in Delhi Riots case