Saturday, December 9, 2023

“Chakkajams not offence under UAPA” HC slams Delhi Police for chargesheet against student leaders

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Photo: Shakeeb KPA/Maktoob

The Delhi High Court on Tuesday, in three separate orders, while granting bail to the student leaders Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, said that after reading the Delhi Police chargesheet and the material filed alongwith it by the prosecution, it prima facie found the allegations made against them “are not even borne out” from the material on which they are based.

“In our reading of the subject charge-sheet and the material included in it, therefore, prima-facie the allegations made against the appellant are not even borne-out from the material on which they are based,” court observed.

The division bench of Justice Siddharth Mirdul and Justice Anup J. Bhambhani said that they are afraid, that in their opinion, “shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under sections 15, 17 and/or 18 of the UAPA.”

The court has found that offences under the Unlawful Activities Prevention Act (UAPA) are not made out prima facie against student leaders.

The court went on to say: “As expatiated by the Hon’ble Supreme Court in the precedents cited above, protests against Governmental and Parliamentary actions are legitimate; and though such protests are expected to be peaceful and non-violent, it is not uncommon for protesters to push the limits permissible in law. The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. 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.”

Foundations of our nation cannot be shaken by a protest organised by a tribe of college students, judges add.

“We are of the view that the foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi.” Admitting Asif Iqbal Tanha on regular bail, the Bench of Justices Siddharth Mridul and Anup J Bhambhani observed.

The Bench 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.

While granting bail to Natasha, 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.

The court, in its order granting bail to Natasha and Devanagana, has pulled up a special court which had earlier denied their bail applications and noted that it “proceeded essentially on an uncritical acceptance of the allegations contained in the subject chargesheet”.

The Bench clarified that terrorism under UAPA ought to be understood differently from conventional, heinous crimes that fall within the Indian Penal Code.

“Intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less,” read the bail order.

While granting bail to Asif, the court further held that there was “absolutely nothing” in the chargesheet against Tanha, by way of any specific or particularised 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.

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