The right to protest is a fundamental right that cannot be characterized as a “terrorist act,” the Delhi High Court held Tuesday while granted bail to 3 JNU student Natasha Narwal and Devangana Kalita and JMI’s Asif Iqbal Tanha in a case involving communal violence in northeast Delhi during rallies against the Citizenship Amendment Act 2019.
The state has obscured the boundary between the right to protest and terrorist activities, and if such a mindset obtains popularity, it will be dangerous. It would be a shame on Indian Democracy. Delhi High Court remarked it was a sad day for democracy when it granted bail to three students from JNU and Jamia Millia Islamia (MI) in a northeast Delhi riots case.
The definition of terrorist acts under the Terrorism Act is described as somewhat ambiguous.
A Division Bench stated that the court must be cautious in using the definitional words and phrases used in the anti-terror law UAPA “in their absolute, literal sense or use them lightly in a manner that would marginalize the extremely heinous offense of ‘terrorist act’, without understanding how terrorism is different even from the conventional, serious act.”
It was compelled to admit that, in its zeal to stifle dissent and morbid fear that things would spiral out of control, “the State has toed the distinction between the constitutionally guaranteed ‘freedom to protest’ and ‘terrorist act.’
If such blurring takes traction, democracy will be jeopardized, an 83-page verdict by a bench of Justices Siddharth Mridul and Anup Jairam Bhambhani observed while deliberating on the case and implementation of anti-terror statute against Kalita.
It stated that the freedom to peacefully protest without using weapons is a fundamental right under Article 19(1)(b) of the Constitution and has not yet been criminalized.
However, under Article 19(1)(b) of our Constitution provides with a right to protest is a fundamental right derived from the constitutionally guaranteed right to assemble peacefully and without arms, surely the right to protest is not outlawed and cannot be referred to as a ‘terrorist act’ within the meaning of the UAPA unless the ingredients of the offenses under sections 15 and 16 are present.
The high court underlined that it was not judging whether the protests in which Kalita is said to have participated were under Article 19(1)(a) and 19(1)(b) which constitutionally granted right to assemble, or if they crossed the line and constituted non-peaceful protests.
According to the court’s opinion, the relevant charge sheet and the accompanying material do not contain any detailed, particularised, factual charges that would make out the ingredients of the offenses under sections 15, 17, or 18 UAPA.
a. charge of a ‘terrorist act’ under section 15;
b. an act of ‘raising funds for same act’ under section 17;
c. an act of ‘conspiracy to commit, or an ‘act preparatory’ to commit, a terrorist act under section 18.
The division bench referred to its decision in Tanha’s case when dealing with Kalita’s case, stating that the phrase “terrorist act” has been given a very broad and detailed definition in section 15 of the UAPA.
Referring to a Supreme Court decision, the high court stated that the scope and reach of a terrorist activity must go beyond the consequences of a regular crime and cannot originate simply by disrupting law and order or even public order. The impact of terrorist activities must be such that it extends beyond the capabilities of ordinary law enforcement agencies to deal with it under regular penal law.
May 2020 under the strict Unlawful Activities (Prevention) Act (UAPA) Kalita was detained in connection with a bigger conspiracy relating to rioting against CAA.