The Prosecution’s political case: Delhi High Court disposes

Deftly analysing the recent Delhi High Court judgments granting bail to jailed student activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal who were charged under the stringent Unlawful Activities (Prevention) Act for merely organising protests against the Citizenship Amendment Act, 2019, SHAHRUKH ALAM explains the implications of the averments by the State before the High Court in these cases on the new conception of citizens’ participation and explores how easily one can become a ‘terrorist’ in the eyes of law. 


[WHAT the accused organized] was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi’ – State of National Capital Territory (NCT) of Delhi

Bosh!’ – Delhi High Court’s response, in its judgment in the case of Asif Iqbal Tanha vs. State of NCT of Delhi (Crl. A. 39/2021), paraphrased.

Actually, what the Delhi High Court said in reply was:

“We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation and we are of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise. In fact, upon closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations.”

Also read: Delhi Riots case: UAPA accused Devangana Kalit, Natasha Narwal, Asif Iqbal Tanha get bail

Asif, Devangana and Natasha

The Citizenship Amendment Act, 2019 (CAA) and its attendant purposes can potentially reconfigure citizenship status. I believe that the prosecution’s case, emanating from the Delhi Police’s First Information Report (FIR) 59/2020 that describes the anti-CAA protests as a terrorist conspiracy to foment trouble, seeks to do much the same.

It lays down permissible limits for participatory citizenship by naming certain political articulations as ‘propaganda’, or as being hostile to the elected government, and thus outside the purview of civic action. 

Acceptable citizen action is redrawn as one that is neither overtly antagonistic to the government, nor loudly wishing for political change, as well as one that has, at least, a working relationship with majoritarian sentiments.

It is not a broad spectrum either: what is not acceptable civic action falls into the category of a ‘terrorist act’. In this manner, the prosecution sifts the wheat from the chaff; the good citizen from the unruly subject.

Also read: Why is it Important to Preserve and Protect our Freedom of Speech, Expression and Right to Protest

To be sure, the prosecution’s case is not that the accused persons are directly implicated in the death of the 53 persons, killed in the Delhi pogrom in February last year. Rather, their case is that the accused raised political concerns that were ‘not authentic’ and mobilized people, which they should have known would lead to violence.

In fact, the proposition that organization of street protests is an inherently negligent activity, which must always result in violence, has been judicially examined and rejected in many cases. However, in the criminal appeals of Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal decided by the Delhi High Court, the prosecution has repeatedly stated that the ‘context and circumstances’ in which the acts were committed distinguished it from other protests:

“The State alleges thereby that “a radical approach animated by extremist intent giving a different orientation to words of ordinary connotation like chakkajam is self-evident”.” [Asif Iqbal Tanha, Page 35]

It is not made explicit what the ‘radical approach’ was, or indeed when ‘extremist intent’ was on display, in a manner that distinguished the proposed chakkajam from many others in our political history, including the Navnirman movement of 1974, in which Prime Minister Narendra Modi admittedly participated and kick-started his political career.

Also read: Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal ordered to be released by Delhi court

Conclusions that follow from the prosecution’s case

In the event, one can only make the following surmises from the list of allegations presented before the Court in all three cases.

  1. FIR 59/2020 states that in organizing protests to coincide with the visit of the then-American President Donald Trump, the accused were trying to spread ‘propaganda’ on a global stage about minorities in India being harassed. As I have argued elsewhere, it is unusual for an FIR to deprecate a political assertion as ‘propaganda’. In democratic polities, such ‘erroneous’ assertions are normally met with counter-reassurances from the government.In autocratic societies, on the other hand, it may be a crime to claim discrimination or political marginalization.

    In any case, the State seems to be advancing on the presumption that the fear of the CAA is a manufactured one, and that attendant protests are motivated and therefore outside the domain of permissible protest action.

    One might argue, as an aside, that there is more evidence of the fears being authentic than not. But the moot point here is whether articulation of ‘unjustified’ political claims is a ‘terrorist act’?

    Here, it would appear that the answer depends on who is making the unjustified political claim. Does it reflect popular sentiments, or is it subversive of them?

  2. “It is urged that there was thus “an emphasis upon division and polarization through narrowing the areas of mutual engagement by emphasizing ethnocultural nationalism over cosmopolitanism and using the excuse of a political protest to give primacy to religion”” [Asif, Page 37]The State seems to have presumed that specific concerns of particular communities have no traction for the general citizenry, and their noisy articulation would lead to social disharmony. It does not appear to be a correct proposition, though, that expressing community-specific concerns always leads to divisions.

    The State would know – from trying Devangana and Natasha as co-conspirators in organizing the same protests.

    Even if it were true, the State’s case also obviously ignores the fact that social, political (and electoral) mobilization is often enough based on identities.

  3. There also seems to be present the ghost of Pakistan, and an inherent fear of Muslim political mobilization, even if it is to claim better citizenship rights in India. Always, the conversation moves back to the unfinished business of history, and to citizenship.“[T]hat co-accused persons instructed the appellant to visit Muslim majority and Muslim dominated areas for campaigning as part of the protest, and the appellant was also instructed to co-ordinate with local Imams to mobilize people for the protest” [Asif, Page 5]

    If the fact of such mobilization is constitutive of an offence of conspiracy towards causing large-scale violence, it would seem that the State views Muslim political mobilization as dangerous in and of itself, presuming that the Muslim masses are easily led into states of agitation and violence.

    The judgment in Asif records the State referring to anti-CAA protestors generally as a ‘mob’, without any imputation (leave alone any evidence) of them being violent. It is almost as if the bare bodies of these suspicious subjects were akin to the ‘lethal weapons’ or ‘poisonous or noxious substances’ referred to in Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). 

Also read: UN Experts note discrimination against Muslims in CAA; seek release of protestors and investigation of instigators of violence

If unruly mobs start to agitate over ‘perceived grievances’, then it is bound to provoke others, out of general fear, into retaliatory violence. The State’s own role in either engaging with ‘erroneous perceptions’, or creating any kind of atmosphere of conviviality is missing.

“[The] context and circumstances in which the acts were committed would clearly cause reactions affecting not merely specific individuals but disorders of most extreme gravity.” [Asif, Page 30]

Such an articulation normalizes the idea that unpopular dissent will invite retaliatory violence from those that it annoys. It also shifts the blame for the retaliatory violence from the perpetrator to the victim who is perceived as the ‘first violator’. 

The prosecution relies on several electronic messages, which it interprets as the accused readying the mob for violence. There is another plausible interpretation: that the protestors are expecting retaliatory violence, exactly like the prosecution case has suggested above, and are debating whether to continue the protest in the face of such threats.

The Delhi High Court’s judgments have given us valuable jurisprudence on bail under UAPA (although the Supreme Court has decided to entertain a challenge to the High Court judgments, and ruled that the judgments will not be ‘treated as precedent, or be relied upon by any court’ in the meantime.). But, because it must first give a finding on whether there is a prima facie case against the accused, it has also had to discuss the prosecution’s case as a whole.

Also read: Wanton, frivolous use of UAPA by the State undermines Parliament’s intent in enacting anti-terror law: Delhi HC

Its findings dispel the hypothesis that unpopular dissent is so far outside the bounds of the state polity that it is a ‘terrorist act’. In fact, the judgments in Asif, Devangana and Natasha could potentially open up the democratic space for all dissenting subjects.

“[W]e 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, organized 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” [Asif, Pages 80-81]

Nalini and who is a terrorist

While appearing in the special leave petition challenging the Delhi High Court judgments in AsifDevangana and Natasha, the Solicitor General of India Tushar Mehta, representing the petitioner Delhi police, made a reference to the Rajiv Gandhi assassination case, perhaps seeking to draw some lessons from it.

Of course, one obvious lesson could have been to desist from ‘foisting extremely grave and serious penal provisions … frivolously upon people’ [Asif, Page 86], but the petitioner was making a separate point about ‘perceived beliefs’ and metaphorical bombs.

Also read: Govt wants to cage women who speak against it, say Narwal and Kalita as they and Asif Tanha walk free from jail

Reference must be made at this point to the Supreme Court’s judgment in the case of State of Tamil Nadu through Superintendent of Police, CBI/SIT vs. Nalini & 25 Ors., (1999) 5 SCC 253, in which a three judge division bench of the apex court gave a concurring finding on whether the assassination of former Prime Minister Rajiv Gandhi amounted to a ‘terrorist act’ under the then prevalent ‘security law’: the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). It recognized (albeit implicitly) the dynamic of power involved in deploying the term ‘terrorist’ in relation to any action.

‘Terrorism’ is a political term. It describes outrageous, randomized violence inflicted in pursuance of a political ideology. However, the definition of ‘terrorism’ excludes, from its common understanding, certain other kinds of violence that may equally terrorize people: structural violence that have been the legacies of post-colonial nation-states, for instance.

Quite apart from its odd deployment in the present cases, its usage in any context is not without meaning. ‘Terrorism’ has the capacity to label political violence as ‘evil’ on the one hand, or ‘collateral’ and ‘necessary’ on the other.

Also read: Peaceful protesters not traitors or anti-nationals, says Bombay HC

In Nalini, the Supreme Court ruled that the assassination was an instance of random political violence, and not ‘terrorism’.

“53. It is true, LTTE leaders were bitterly critical of the ‘India-Sri Lanka Accord’, which was signed on 22-7-1987. Anyone who criticized the policy of a government could not be dubbed as a terrorist unless he had done any of the acts enumerated with the object of deterring the government from doing anything or to refrain from doing anything.

59. From the aforesaid circumstances it is difficult for us to conclude that the conspirators intended, at any time, to overawe the Government of India as by law established. Nor can we hold that the conspirators ever entertained an intention to strike terror in the people or any section thereof. The mere fact that their action resulted in the killing of 18 persons, which would have struck great terror in the people of India, has been projected as evidence that they intended to strike terror in the people. We have no doubt that the aftermath of the carnage at Sriperumbudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that is a different matter and we cannot attribute an intention to the conspirators to kill anyone other than Rajiv Gandhi and the contemporaneous destruction of the killer also.” 

The judgment did not change Nalini’s fate in prison, as she was convicted of murder under Section 302 of the Indian Penal Code. However, the Supreme Court arguably ‘depoliticized’ the violence, to some extent.

(Shahrukh Alam read Law and Sociology and now practices at the Supreme Court. The views expressed are personal.)