Bail Granted: Logical Or Illogical?
Last year, Jawaharlal Nehru University students Natasha Narwal
and Students' Islamic Organisation activists Asif Iqbal
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.
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
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 azadiŁ 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
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.
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
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
Ł 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
According to Special Rapporteur to call an offence a Terrorist ActŁ, three
elements must be cumulatively present:
- The means used must be deadly
- 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
- 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 ActŁ 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
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
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.
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
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
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
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
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
The court said that in establishing a prima facie case under these provisions,
there have to be specific or particularisedŁ allegations. It notes in the bail
order that the prosecution has only made inferences about three activists, using
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
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.
- Shreyash Tripathi, Student at Lloyd Law College, Gr. Noida
- Yashika Jha, Student at Lloyd Law College, Gr. Noida