AT THE HEART of the controversy relating to the denial of bail to Sharjeel Imam and Umar Khalid is a simple question: what is the crime that they have committed? What if they have committed no crime at all under the Unlawful Activities (Prevention) Act, 1967? Would bail still have been denied to them?
By far the most dangerous aspect of the judgment delivered by Justices Aravind Kumar and N.V. Anjaria is the Court’s interpretation of Section 15 of the UAPA, which defines a “terrorist act”. To understand why, one must begin with the definition of ‘terrorism’.
There is, to date, neither international nor national consensus on what constitutes terrorism. The crime of terrorism was introduced following what the United States described as the ‘war against terror’ following the 9/11 attacks. Yet, today, we do not have a definition of what constitutes terrorism. We, therefore, have to look at Section 15 of the UAPA.
Section 15 merely states, “Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security , economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,” and does so through specified terror-linked means such as bombs, explosives, firearms or other hazardous substances, or by methods likely to cause death, destruction, or disruption of essential services. The statutory design, thus, ties terrorism to both a terror-centric intent and the use of exceptional, terror-producing means, not to ordinary criminal violence.
