Ex-Facie Perverse: Delhi Police on HC Bail Order for UAPA Accused

The SC will hear the petition against the release of Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha today.

The Supreme Court will on Friday, 18 June, hear Delhi Police’s petition against the release of Pinjra Tod activists Devangana Kalita, Natasha Narwal, and Jamia student Asif Iqbal Tanha – who were granted bail in connection with the Delhi riots case.

The Delhi Police, meanwhile, has claimed that the high court order is “ex-facie perverse” and “unsustainable in law and deserves to be stayed,” in its appeal.

The Delhi HC on Tuesday had granted bail to the three held under the Unlawful Activities Prevention Act (UAPA) after the Delhi riots in 2020, stating that protests cannot be made grounds for terrorism.

A trial court in Delhi on Thursday ordered their immediate release, two days after the three activists had moved the court seeking the same. The Delhi police had attributed the delay in releasing them to verifying the sureties and addresses.

On Wednesday, Additional Sessions Judge Ravinder Bedi had deferred the order to Thursday, 11 am, citing a “heavy board” of other bail applications.

What the Delhi Police Claims

The claims made by Delhi Police in it’s appeal include:

• The high court has conducted a "mini-trial" and has also "recorded perverse finding which are contrary to record and the arguments made during the hearing of the case to arrive at a finding that case under Sections 15,17 and 18 of UAPA was prima facie not made out against the respondent."
• Contrary to the evidence on record and the detailed oral and written submission, the high court, has decided the case in hand on "a preconceived and a completely erroneous illusion, as if, the present case was a simpliciter case of protest by students."
• The high court has applied irrelevant considerations while granting the bail.
• The misdirection of the high court is evident from the observation made by it in the impugned judgment, wherein, the Hon'ble High Court has held that the present case was foisted in anxiety to suppress dissent.
• In pursuit of establishing that the present case was mere case of protest and an attempt by the government to suppress the dissent, the high court has, in the judgment and order, also read down the provision of UAPA, specially that of the definition of terrorism contemplated in Section 15 of the Act.

Stating that the high court has held that provisions of UAPA can only be applied to deal with matters of profound impact on the ‘Defence of India’, “nothing more and nothing less,” the Delhi Police said:

“This in the respectful submission of the petitioner was firstly, an irrelevant consideration to grant bail to the respondent, and secondly, will have far reaching consequences for cases investigated by NIA and other investigating agencies.”

Delhi Police’s ‘Grounds for Urgency’

Some of the grounds for urgency cited by the Delhi Police are:

• The high court order is “ex-facie perverse” because it allegedly misapplied “the law of bail releasing the appellant by ignoring the overwhelming evidence present on record and completely disregarding that the allegations against the appellant are prima facie true.”
• The order has directed release of persons who are accused of serious offences under UAPA and “hence there is urgency in the matter as immediate stay has been sought in the present case.”
• The offence alleged against the petitioner are under Section 15 and 18 of the UAPA. The trial court has denied bail to the appellant. However, the high court has allowed the appeal under Section 21 (4) of the NIA Act without even referring or demonstrating as to who the reasoning of the trial court is erroneous.
• The high court order has ignored material evidence against the petitioners which were present on record and the allegations have been made of flippant use of UAPA for which there is no basis and when there is enough evidence available to invoke the same against the appellant.
• The order, “through an erroneous interpretation has watered down the provisions of UAPA which will have wide ramifications and will affect all the cases registered by the National Investigation Agency (NIA) under the provisions of UAPA.”
• The high court has misinterpreted the law laid down by in the case of Union of India vs KA Najeeb which “will open a floodgate affecting almost every case under UAPA.”
• The high court while granting bail to the appellant before it, “has render findings touching upon the merits of the matter which will affect other similar cases jeopardising the cases going on before the Trial Court. Hence, it is essential that the same should be stayed immediately.”

The Delhi High Court Order

On Tuesday, 15 June, the Delhi High Court granted bail to three Unlawful Activities (Prevention) Act accused – Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha – in the Delhi riots case.

While reiterating the essence of terrorism as laid down by the Supreme Court in various judgments, the court held that terrorism can’t be conflated with “law and order problems” or “violent protests.”

The court has highlighted that there’s a fundamental difference between protests and acts of terror. Even when the protests turn violent, it would prima facie be seen as a “law and order” issue and not as terrorism.

The court even expressed its concern on the growing trend of invoking the UAPA against protesters:

“In its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.”

The court had also pointed out that the definition of ‘terrorist act’ in Section 15 of the UAPA is wide and even somewhat vague. Therefore, while interpreting it, the courts must keep in mind the “essential characteristics of terrorism” to prevent the application of UAPA to offences, which are squarely covered by IPC.

Providing “literal” or “expansive” interpretation to the UAPA would not only violate the constitutional framework, but also “trivialise” a heinous offence.