Foundations of our nation stand on a surer footing and cannot be shaken by a protest organised by “a tribe of college students”, the Delhi High Court said on Tuesday while granting bail to Jamia student Asif Iqbal Tanha and holding that prima facie no offence is made out against him under the stringent anti-terror law.
The high court said “foisting extremely grave and serious penal provisions” engrafted under the Unlawful Activities (Prevention) Act (UAPA) “frivolously” upon people would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our nation.
“Having given our anxious consideration to this aspect of ‘likelihood’ of threat and terror, 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,” a bench of Justices Siddharth Mridul and Anup Jairam Bhambhani said in a 133-page judgement.
The high court said it was of the view that on an objective reading of the allegations contained in the charge sheet, there is a complete lack of any specific, particularised, factual allegations, other than those sought to be spun by mere grandiloquence, to make out the offences under sections 15 (terrorist act), 17 (punishment for raising funds for terrorist act) or 18 (punishment for conspiracy) of the UAPA.
“Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation. Wanton use of serious penal provisions would only trivialise them.
“Whatever other offence(s) the appellant (Tanha) may or may not have committed, at least on a prima facie view, the State has been unable to persuade us that the accusations against the appellant show commission of offences under sections 15, 17 or 18 of the UAPA,” the bench said.
It said the phrase ‘terrorist act’ has been defined in a very wide and detailed manner within section 15 of the UAPA and the court must be careful in employing the definitional words and phrases used in the provision in their absolute literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime.
The court even if it is assumed that the protest had crossed the limit of what is permissible under Articles 19(1)(a) and 19(1)(b) [protection of rights relating to freedom of speech] of the Constitution and went into the forbidden realm of a non-peaceful protest, there is nothing to show that the government had prohibited the protest at the relevant time, much less is there anything to show that Tanha was the perpetrator or conspirator or was involved in any illegal protest.
The court said whatever offences are alleged to have been committed by reason of the protests having turned non-peaceful are subject matter of another FIR in which Tanha has already been granted bail and will face trial in due course.
“There is absolutely nothing in the subject charge-sheet, 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.
“We are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found the offences defined under section 15, 17 or 18 UAPA,” it said.
The court noted that the specific, particular and overt act attributed to Tanha in the charge sheet was that he handed over a SIM card given to him by someone else, to a co-conspirator/co-accused, which was further used to send messages on a WhatsApp group.
It said there was no allegation of recovery of arms, ammunition and other articles from him.
The high court there was no allegation in the charge sheet that the anti-CAA protest extended even to the whole of the National Capital Territory of Delhi and it showed that the protest and the disruptions were restricted to North-East Delhi.
“It would therefore be a stretch to say that the protest affected the community at large for it to qualify as an act of terror,” the court said and added that mere use of alarming and hyperbolic verbiage in the charge sheet will not convince the judges.
Tanha, who along with others was chargesheeted for various offences under the IPC and UAPA, Arms Act and Prevention of Damage to Public Property Act, will be released from the jail on bail as he has already bail in another case.
Communal clashes had broken out in north east Delhi on February 24 last year after violence between citizenship law supporters and protesters spiralled out of control leaving at least 53 people dead and around 200 injured.
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