Delhi HC order not to be cited as precedent, says SC; agrees to examine Delhi police appeal against bail to UAPA accused Devangana Kalita, Natasha Narwal, Asif Tanha

THE Supreme Court Friday agreed to examine the appeal filed by the Delhi police against the Delhi High Court’s order granting bail to UAPA accused Devangana Kalita, Natasha Narwal and Asif Tanha in the North-East Delhi violence case.

A vacation bench of Justices Hemant Gupta and V Ramasubramanian issued notice to the accused persons while clarifying that it was not staying the bail granted to the three at this stage.

The court also ordered that the Delhi high court judgment would not be treated as a precedent in the meantime.

The top court was of the view that the high court judgement on the interpretation of UAPA had pan-India ramifications and thus required examination.

Appearing for the Delhi police, Solicitor General(SG) Tushar Mehta submitted that the entire UAPA had been turned on its head along with the Constitution by the high court, which, according to Mehta, had “virtually” acquitted the accused persons.

With the high court order, technically the trial court would be required to entertain the discharge application from the accused, Mehta said.

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Justice Gupta observed the court found it troubling that the high court had, in a bail application, commented on the law that too when the validity of the UAPA was not under challenge.

SG Mehta vehemently prayed for a stay of the judgment but did not object to the accused remaining out on bail. Senior Advocate Kapil Sibal for the accused agreed to the extent that the order wouldn’t be treated as a precedent till the Supreme Court decided on the larger issue.

Mehta contended that if we go by the High Court order, even the lady who assassinated a former PM was merely protesting. He said 53 people died and 700 were injured in the Delhi riots. The right to protest does not mean the right to kill and hurl bombs, he said.

All the three accused were released yesterday evening after spending more than twelve months in jail for the UAPA charges, which the Delhi High Court said prima facie was not made out.

A Delhi high court bench of Justices Siddharth Mridul and Anup J Bhambhani went on to state, “…In its anxiety to suppress dissent… the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’.”

It said notwithstanding the fact that the definition of ‘terrorist act’ in section 15, UAPA was wide and even somewhat vague, “the phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.”

The Delhi police sought to argue that Section 15 of the UAPA which defines “terrorist act”, contemplated not only an act ‘with intent to threaten’ the foundations of a nation but also any act ‘likely to threaten’ such foundations.

The high court rejected the argument of the Delhi police and said  “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 situated in the heart of Delhi.”

The allegations against Tanha, Kalita and Narwal are that they engaged in various steps and actions, the object of which was to organise a protest against the Citizenship Act and National Register of Citizens(NRC) and take it to a crescendo that would lead to a chakka jaam (traffic jam), so that supplies and services to the people of Delhi are adversely affected; and also to spread fear and cause riots. All the three are facing charges both under the Indian Penal Code(IPC) and the UAPA- a law in which grant of bail is almost difficult if the allegations are, prima facie, true.