‘Not a Terrorist Act’: HC on Right to Protest in Asif Tanha’s Bail

Read the part of the court order that discusses the fundamental right to protest that flows from the Constitution.

The Delhi High Court, on Tuesday, 15 June granted bail to Asif Iqbal Tanha, Natasha Narwal, and Devangana Kalita in a Delhi Riots case registered against them under the Unlawful Activities (Prevention) Act. In the order – granting bail to Tanha, a student pursuing his final year of BA (Hons) (Persian) Programme at Jamia Millia Islamia – the court discussed permissible contours of a protest.

“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. (sic)”

Delhi High Court

The order also relied on past judgments of the Supreme Court to point out that “legitimate dissent is a distinguishable feature of any democracy”.

Here’s the part of the order that details, coherently, legally and unambiguously, the fundamental right to protest flowing from articles 19(1)(a) and 19(1)(b) of the Constitution of India:

Asif Tanha's Bail: Delhi HC Examines Right to Protest

62. Since this matter emanates from a protest organised by certain persons, which the State alleges, was no ordinary protest but one that has shaken or is likely to have shaken, the entire foundations of our Republic, we feel compelled to discuss what might be the permissible contours of a protest that would not threaten our nation.

63. In this context we examined, when, the constitutionally guaranteed right to protest, which derives from the rights under Article 19(1)(b) of the Constitution to “assemble peaceably and without arms”, crosses the line and ventures into commission of a cognizable offence under the ordinary penal law; and even more so, when, the right to protest further crosses into the territory of becoming a terrorist act or a conspiracy or an act preparatory to commission of a terrorist act under the UAPA.

64. The observations of the Hon’ble Supreme Court in Mazdoor Kisan Shakti Sangathan (supra) appear to us to be the most lucid and pithy answer as to the contours of legitimate protest and these bear repetition.

In the said decision the Hon’ble Supreme Court says that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated.

The Supreme Court further said that a demonstration may take various forms: it may be noisy, disorderly and even violent, in which case it would not fall within the permissible limits of Articles 19(1)(a) or 19(1)(b) and in such case the Government has the power to regulate, including prohibit, such protest or demonstration.

The Government may even prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic but the Government cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Articles 19(1)(a) and 19(1)(b) of the Constitution.

65. Assuming, without however expressing any opinion thereon, that in the present case the protest in question crossed the limit of what is permissible under Articles 19(1)(a) and 19(1)(b) and went into the forbidden realm of a non-peaceful protest, first of all there is nothing to show that the Government had prohibited the protest at the relevant time, much less is there anything to show that the appellant was the perpetrator or conspirator or was involved in any illegal protest.

In any case, whatever offences are alleged to have been committed by reason of the protests having turned non-peaceful are the subject matter of FIR No. 298/2019, in which the appellant is an accused and in which he has already been admitted to 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.

66. In our view, on an objective reading of the allegations contained in the subject charge-sheet, there is complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence, contained in the subject charge-sheet that would make-out the ingredients of the offences under sections 15, 17 or 18 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 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 UAPA.

67. On another note, the learned ASG has attempted to distinguish the decision of a 3-Judge Bench of the Hon’ble Supreme Court in K. A. Najeeb (supra), submitting that that decision came to be made in the backdrop of an extended period of incarceration of the accused person as an undertrial and there being no likelihood of the trial being completed in a reasonable time. This, the learned ASG says, is not the case in the present matter.

As presently advised, though the subject charge-sheet has been filed, there are some 740 prosecution witnesses, including public witnesses, protected witnesses, police witnesses cited in it; and trial is yet to commence.

Should this court then wait until the appellant has languished in prison for a long enough time to be able to see that it will be impossible to complete the deposition of 740 prosecution witnesses in the foreseeable future, especially in view of the prevailing pandemic when all proceedings in the trial are effectively stalled? Should this court wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated, before it steps in and wakes up to such violation?

We hardly think that that would be the desirable course of action. In our view the court must exercise foresight and see that trial in the subject charge-sheet will not see conclusion for many-many years to come; which warrants, nay invites, the application of the principles laid down by the Hon’ble Supreme Court in K. A. Najeeb (supra).

68. Since we are of the view that no offence under sections 15, 17 or 18 UAPA is made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C.