Vinod Mubayi

India, which boasts of being the “world’s largest democracy”, has a peculiar legal system for addressing protest or dissent against the regime in power. Despite a liberal secular constitution that guarantees freedom of speech and assembly, in practice people can, have been, and are being arrested for criticizing public officials or their policies under laws dating back to the colonial era such as the law on sedition.

What is worse, however, is that if someone arrested manages to get bail under the original charge, the police, at their whim, re-arrest the same person, under far more draconian laws, such as the “anti-terrorist” UAPA (Unlawful Activities Prevention Act) that makes bail extremely difficult, if not impossible, while the “investigation” drags on, rendering someone incarcerated for years before any trial begins. The judiciary, especially at the lower levels, intimidated by the executive bows to the whims of the police and prosecutors thus making a shambles of the entire legal process. As is common knowledge, this practice has significantly intensified in the era of the Modi regime that came to power promising “minimum government, maximum governance” but does the opposite to any dissent from its policies and actions. Meanwhile, actual perpetrators of violence, BJP political leaders shouting “goli maro salon ko” (shoot the bastards) and egging on mobs of Hindutva goondas to attack minorities and destroy their properties are not touched most likely on the orders of the political masters of the police.

In this fetid atmosphere redolent with the stinking air of police lying and intimidation accompanied by judicial timidity, a judgment of the Delhi High Court awarding bail to three students, Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, arrested under a variety of charges including UAPA, has come as a breath of fresh air dispelling, at least partly, the stink and gloom enveloping the Indian legal system in recent years. The background to the judgment arises from the arrests made by the police following the widespread peaceful protests last year against the discriminatory CAA/NRC (Citizenship Amendment Act/National Register of Citizens) that culminated in the Delhi riots of late February-early March 2020. Many neutral observers pointed to the Hindutva role in fomenting the violence with complicity on the part of the Delhi police who are ruled by the Central Home Ministry led by Amit Shah. Instead of the perpetrators the police arrested scores of peaceful protestors, many of them students at prestigious institutions such as JNU and Jamia Millia Islamia, including Natasha, Devangana and Asif. Initially they were charged under ordinary criminal law but after they got bail under the criminal charges the police immediately charged them under the terrorist sections of the UAPA and they were re-arrested.

Despite a clear lack of any evidence the police claimed that it was the Muslims and radical students who had conspired to cause the riots, a claim that was thoroughly exposed and debunked by the Delhi High Court in the cases of Natasha, Devangana and Asif. [The details of the case and the egregious conduct of the prosecution are outlined in an article by the distinguished retired Supreme Court justice Madan B. Lokur that we carry separately in this issue]. What the Delhi High Court did was to shine a bright light on the defects of the UAPA law itself under which hundreds of people have been incarcerated as undertrial prisoners for years and years only to be eventually acquitted after trial and set free but having a substantial portion of their life destroyed in the process.

The well-known lawyer and legal analyst Mihir Desai writing in The Wire of June 16, 2021 remarks that the “importance of these Judgments lies in their rigor, logic and creativity…while discussing the facts in detail [the judgments] find that none of the accused were prima facie involved in any terrorist activities. The Delhi High Court goes into the history of the UAPA and comes to the conclusion that …it applies only in situations where the defense of India is threatened and not merely where a law and order or even public order situation arises.” This observation of the Court destroyed the prosecution case that was based entirely on innuendo and specious arguments that were thoroughly exposed by the Court.

The judgment indicated “There is absolutely nothing in the subject charge-sheet, by way of any specific…allegation, that would show the possible commission of a ‘terrorist act’ within the meaning of section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA. Accordingly, prima-facie we are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found any of the offences defined under section 15, 17 or 18 UAPA”.

Alarmed at the High Court order that at one stroke threatened to demolish the legal basis of the UAPA, which would have led to freedom for many undertrial detenus, the minions of the government led by the Solicitor General Tushar Mehta rushed to the Supreme Court to cancel the orders of the High Court awarding bail. A vacation bench of the Supreme Court refused to cancel bail but gave a partial nod to the government by saying that the observations of the Delhi Court on the UAPA would not have “precedent value” in other cases.

It is difficult, however, to see how the Delhi High Court’s logic and legal reasoning on UAPA can be reversed unless it is done on purely political grounds by passing more black laws or the Supreme Court meekly bows to the government and overturns the Delhi High Court’s judgment.

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