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How the Delhi HC gave a fitting reply to criminalisation of dissent and protest

Teesta Setalvad analyses the orders passed by the court while granting bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha

23 Jun 2021

Image Courtesy:cjp.org.in

June 15 2021 brought us the three judgements granting regular bail to three young activist academics, Asif Tanha, Devangana Kalita and Natasha Narwal, in the infamous cases alleging “conspiracy” into the February 2020 targeted violence in North East Delhi. The significance of the substantively reasoned orders will not merely grant these three persons their freedom (eventually!*) but has laid down a just and carefully creative understanding of “offences” deliberately construed by the State as acts of terror under a draconian statute.  

The Unlawful Activities (Prevention) Act (UAPA), which after amendments made in 2004 and 2008, introduced acts of terrorism, funding terrorist activity and conspiracy to commit acts of terror into its ambit (the law dates back to the 1960s), has been regularly abused since then, often to incarcerate politically inconvenient voices, more especially so by the executive in the past seven years.

To contextualise these particular cases, we need to re-visit Delhi, and India of December 2019-early 2020 before the Covid-19 pandemic paralysed all existence. In the background of the regime’s conduct post 2016, with the young student fraternity at Hyderabad Central University (HCU-institutional murder of Rohith Vemula) and targeting of the Jawaharlal Nehru University (JNU), the hasty passage of the unconstitutional Citizenship Amendment Act (CAA) 2019 during the first six months of this government’s second term, unleashed a series of protests emanating first out of the Jamia Milia Islamia university (JMI), then flowering into Shaheen Bagh and several other protest sites in the north eastern part of Delhi. Student and community leaders led them, the language was both assertive and creative and it was India’s Muslim citizenry that, fearing disenfranchisement and an existential threat, was exercising its fundamental right to peacefully protest. The political vilification of protesters and dissent since 2016 culminated in violence against and the jailing and incarceration of student leaders (recall vile terms like tukde tukde gang) and by 2019-2020 this abuse had turned violent “Goli maro salon ko”, and directed against its main ideological enemy, the Muslim. All out efforts to provoke violence and win the Delhi state elections in early 2020 did not quite work and recorded speeches of influential professional hate-mongers escaped the long arm of the law.

Then came the sudden lockdown and the Delhi police, guided by its political masters constructed a case against some of the key young leadership among the protesters. Initially criminal law sections were applied under which almost all of them obtained bail. Undeterred, the draconian sections 15, (terrorist act), 17 (punishment for raising funds) and/or 18 (conspiracy) of the UAPA were thereafter applied. All these sections form part of Chapter 4 of the Act dealing with Terrorist activities. The National Investigating Agency (NIA) thereafter stepped in, FIRs were filed (in this case FIR Nos 59/2020) constructing a theory behind the “aggravated protests”, and bail was thereafter refused. Apart from these three activists, another 18 remain incarcerated under similar charges and offences.

Before I get into the judgements themselves, a word for the intrepid legal team that ran the defence in these cases. Senior Advocate Siddharth Aggarwal with Advocate Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhari, Nitika Khaitan appeared for Tanha. Advocates Adit S Pujari, Tusharika Mattoo, Kunal Negi appeared for Kalita and Narwal. In cases such as these, the physical and emotional toll on lawyers is immense. Saluts.

Justices Siddharth Mridul and Bhambhani, while granting bail to three student leaders have applied a thoroughness of both, reasoning and creativity. The legal reasoning outlined in the judgement granting bail to Asif Iqbal Tanha (the lead judgement) begins by tracing the legislative history of the UAPA. Under Article 246 of the Constitution, that demarcates India’s federal structure, the judgement outlines that under List 1 of the VIIth Schedule, the “Union List” demarcates the legal right given to Indian Parliament to legislate on laws contained in subjects under that list. Entries 1 and 93 under List 1 of the VIIth Schedule relates to the “Defence of India”.  List-II in the VIIth Schedule relates to the State List List-III to the Concurrent List. Entry-2 of the State List deals with Public Order. Making detailed explorations and distinctions between the two, the Court holds that since Parliament could not pass any law related to ‘law and order’, ‘public order’ issues, the legislative competence and intent of the Indian Parliament, in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. The Court states,

“The purpose of referring to Entry 1 of List-I (Defence of India) and Entry 2 of List-II (Public Order) is to take notice of the fact that since UAPA is a central legislation, it would have been enacted in relation to the ‘defence of India’ as contra distinct from ‘public order’, since it must be presumed that when the Parliament enacted the UAPA, it was acting within the scope of its powers under the constitutional scheme and was therefore enacting a legislation relating to a matter that was within its competence under Article 246 and the Seventh Schedule of the Constitution.

Absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.”

At the outset then the verdicts lay out a stringent provision that will need to be followed by law enforcement in all future cases: that the UAPA and its provisions can only be applied in matters pertaining to the defence of India and the stability of the nation. Exploring the offences that have been laid at the door of these activists, the Judgement in Asif’s case states,

“In our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made”, said the court while granting bail to Asif Tanha.”

The allegation against Asif was that he engaged in protests, chakkajam, to cause complete stoppage of vehicles and blockade of roads, so that supplies and services to the people of Delhi are adversely affected; and also to spread fear and cause riots. But the court held that there was no allegation in the subject charge-sheet that he was leading the co-conspirators in these acts. He was not even the group administrator of any of the WhatsApp groups, which, the allegation goes, were formed “with the sinister aim of organising a protest against the CAA that would cause havoc amongst the ordinary citizenry”. The judgement states that there is only one “specific, particular and overt act” that Asif is stated to have committed, namely that he handed over a SIM card given to him by someone else, to a co-conspirator, which, it is further alleged, was used by the said co-conspirator to send messages on a WhatsApp group. “Other than this one action that is specifically attributed to the appellant, this court is unable to discern any other act or omission attributed specifically to the appellant”, said the HC.

No arms, ammunitions or other weapons were discovered from Asif. The government had argued that even the likelihood that Asif’s acts or omissions may threaten the nation are an offence under the UAPA. On this aspect of ‘likelihood’ of threat and terror, the Court stated,

“The foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised 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.”

“It has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation.”

Thereafter, the court proceeds with particularity and minuteness to meticulously delve into the evolution of stringent provisions in India’s anti-terror laws to hold that laws that involve more stringent provisions of punishment and prevent bail, need to be both narrowly and more strictly applied when it comes to defining an offence. Analysing a slew of judgements and jurisprudence emerging over past decades the Court explores the question,

“What however, is ‘terrorism’ or ‘terror’, from which the meaning of ‘terrorist act’ and other related words may be derived?”

Interestingly drawing a jurisprudential difference between law and order, public order and security of state the judges hark back to the judgement in Ram Manohar Lohia (Dr) vs. State of Bihar[1]:

“55. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”

Delving deep into this question and making sharp and nuanced observations on the question, the Court warns that laws with stringent punishments need narrow and specific, particular applications in each case, to both justify and attract their use. At Para 40 of Asif’s judgement, the Court has observed,

“Another sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed.”

It is through this deductive reasoning in chaining down the alleged offences detailed in the charge sheet related to these three student activists that the Court both deals and does away with the stringent provisions for bail under UAPA outlined in Section 45 Section 43 (D) (5). The Court then proceeds to deal with the applications for bail under ordinary criminal law.

Thereafter, the Court deals with two significant recent verdicts of the Supreme Court related to bail under the UAPA. The first is the NIA v/s Zahoor Ahmad Shah Watali of 2019 where the interpretation led to the view that delving into the merits or demerits of the evidence at the stage of deciding a bail plea is proscribed. Developing this further, the Delhi High Court holds that,

“The decision of the Hon’ble Supreme Court in Watali (supra) proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea; and as a sequitur, for assessing the prima facie veracity of the accusations, the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material placed with the subject charge-sheet. To bring its case within Chapter IV of the UAPA the State must therefore, without calling upon the court to draw inferences and conclusions, show that the accusations made against the appellant prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.”

“In this case, we find that the State’s attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance.”

“61.        Once we are of the opinion, as we are in the present case, that there are no reasonable grounds for believing that the accusations against the appellant are prima facie true, the Proviso to section 43D(5) would not apply; and we must therefore fall back upon the general principles of grant or denial of bail to an accused person charged with certain offences.”

This interpretation of how and where terrorism and acts of terror should be construed has the potential to constrain and limit wild and unsubstantiated allegations in future.

The Right to Protest

It is on the fundamental freedoms granted under Article 19(1) (a) and (b) of the Constitution that this judgement, after many decades, makes a breakthrough. Again, as on other points of contention in this case, a treasure trove of case law has been cited to both interpret and develop the issue of the right to protest. Judgements like those in Mazdoor Kisan Shakti Sangathan vs Union of India and Anr ((2018) 17 SCC 324.), Babulal Parate v. State of Maharashtra [AIR 1961 SC 884], Kameshwar Prasad v. State of Bihar [AIR 1962 SC 1166], the Constitution Bench judgment, Himat Lal K. Shah v. Commr of Police [(1973) 1 SCC 227] and the Ramlila Maidan Incident, In re [(2012) 5 SCC 1] have all been cited not just uphold this right but hold that such protests are integral to a vibrant, functioning democracy. Citizens and groups have not just the right to peacefully protest. The State cannot put unreasonable curbs or the spirit and need for such protests will be denied. Needless to say, no one has the right to have violent protests. Acts of terror and terrorism are intended to target the integrity of India and destabilise the state. Protests in the heart of the capital, moreover protests that were not outlawed or banned, even if they become obstructive or violent do not amount to terrorism. Those who indulge in or provoke violence can of course be tried under the Penal Code but not under UAPA.

There is a 2021 judgement of the Supreme Court in the Najeeb Case (Union of India v/s K.A. Najeeb, 2021) in which the Supreme Court had held that a person jailed for several years under UAPA cannot be shorn of his fundamental rights. The right to time bound justice through a speedy trial is a fundamental right under Article 21. Hence, the under trial is therefore entitled to be released on bail if the trial is likely to take very long. In that case, the accused had been in jail for 5 years and the maximum punishment he could have been awarded would have been 8 years. The therefore Court released him on bail. In the Delhi case, the State argued that the accused were in jail for only one year and thus even according to Najeeb’s case there had not been prolonged incarceration. The Delhi High Court was clear,

“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.”

In the separate judgements granting bail to Devangana Kalita, the Delhi High Court held that Kalita was a member of certain women’s rights organisations and other groups, and she did participate and help organise protests against the CAA and the NRC in Delhi. But the right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1)(b) of our Constitution, and surely the right to protest is not outlawed and cannot be termed as a “terrorist act” within the meaning of the UAPA.

The court, in clear language and has ruled that, “shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under sections 15 (terrorist act), 17 (punishment for raising funds) and/or 18 (conspiracy) of the UAPA.

“The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions”, opined the HC. Even if Kalita did go ahead and we assume that she made inflammatory speeches, organised chakka jam and instigated women protesters (which the state has alleged), “that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA”, held the court.

In the third judgement granting bail to Natasha Narwal, the Delhi HC said that “no specific, particularised or definite act is attributed to her”, apart from the admitted fact that she took part in the anti CAA protests. The Bench perused the charge sheet and all the materials and said that the allegations made against her are not even borne-out from the material on which they are based. The court said,

“The State cannot thwart grant of bail merely by confusing issues.”

Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, is just evidence that she participated in protests and not incited violence, or committed a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA. These words are quote worthy:

“The line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mind-set gains traction, it would be a sad day for democracy”.

The case of student activist, Natasha Narwal is particularly poignant. Arrested in May 2020, Additional Sessions Judge, Amitabh Rawat had refused her bail holding, that allegations against her were prima facie true (that participating in protests that including blocking of roads was a “terrorist act”) on January 29, 2021. The appeal against this was pending Orders in the Delhi High Court for months when her father, scientist and intellectual Mahavir Narwal, fell ill and succumbed to Covid-19 in May 2021. She was finally given interim bail on May 10, 2021 for three weeks after his death, not being able to meet or see him when he was alive.

The cases of student activists being jailed under UAPA as punishment by a vindictive regime intolerant of democratic dissent and protest has again the spotlighted the case of bad laws which have a potential for blatant misuse. The time is ripe to call for their repeal.

Apart from the UAPA, stringent penal provisions like the section of the IPC on Sedition (124A of the IPC) and laws like the Jammu & Kashmir Public Safety Act (1978) & National Security Act (NSA, 1980) that allow detention of up to two years without trial.

The decades’ long history of the ping-pong as it were between the concentration of state power and people’s assertion of fundamental freedoms (speech, opinion, agitation, organisation) has resulted in a varied jurisprudence on the issue. Conventional penal laws that deal with ‘normal crimes’, to date, contain controversial provisions like section 124A of the IPC that is almost always is attracted or applied to stifle independent views, the “crime” of sedition. India has had 17 governments since it became independent, but none have repealed this section of the law that has been read down in a slew of judgements over 75 years.

Constitutional courts, or all courts, are the critical institutions that balance he overarching power of the state armed with its police and other law enforcement agencies. The curbing of fundamental freedoms, arrests of activists and civil society members protesting policy moves by the executive need to be urgently addressed by a widespread campaign, cutting across civil society and political lines. The Delhi High Court judgement(s) provide another window of opportunity. The next step surely must be a rigorous push for a repeal in these statutes.

Bad laws can be misused by even good governments. Under problematic ones there is a virality of abuse.

(*Till late evening of June 16, the obdurate conduct of the Delhi Police, that reports directly to the Ministry of Home Affairs in the central government, had ensured that the detainees were not released. On June 17, the trial court finally ordered immediate release of all three student activists.)

Related:

A new hope: Student activists charged under UAPA get bail
Creative understanding of UAPA grants freedom from jail for activists: Delhi HC

 

How the Delhi HC gave a fitting reply to criminalisation of dissent and protest

Teesta Setalvad analyses the orders passed by the court while granting bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha

Image Courtesy:cjp.org.in

June 15 2021 brought us the three judgements granting regular bail to three young activist academics, Asif Tanha, Devangana Kalita and Natasha Narwal, in the infamous cases alleging “conspiracy” into the February 2020 targeted violence in North East Delhi. The significance of the substantively reasoned orders will not merely grant these three persons their freedom (eventually!*) but has laid down a just and carefully creative understanding of “offences” deliberately construed by the State as acts of terror under a draconian statute.  

The Unlawful Activities (Prevention) Act (UAPA), which after amendments made in 2004 and 2008, introduced acts of terrorism, funding terrorist activity and conspiracy to commit acts of terror into its ambit (the law dates back to the 1960s), has been regularly abused since then, often to incarcerate politically inconvenient voices, more especially so by the executive in the past seven years.

To contextualise these particular cases, we need to re-visit Delhi, and India of December 2019-early 2020 before the Covid-19 pandemic paralysed all existence. In the background of the regime’s conduct post 2016, with the young student fraternity at Hyderabad Central University (HCU-institutional murder of Rohith Vemula) and targeting of the Jawaharlal Nehru University (JNU), the hasty passage of the unconstitutional Citizenship Amendment Act (CAA) 2019 during the first six months of this government’s second term, unleashed a series of protests emanating first out of the Jamia Milia Islamia university (JMI), then flowering into Shaheen Bagh and several other protest sites in the north eastern part of Delhi. Student and community leaders led them, the language was both assertive and creative and it was India’s Muslim citizenry that, fearing disenfranchisement and an existential threat, was exercising its fundamental right to peacefully protest. The political vilification of protesters and dissent since 2016 culminated in violence against and the jailing and incarceration of student leaders (recall vile terms like tukde tukde gang) and by 2019-2020 this abuse had turned violent “Goli maro salon ko”, and directed against its main ideological enemy, the Muslim. All out efforts to provoke violence and win the Delhi state elections in early 2020 did not quite work and recorded speeches of influential professional hate-mongers escaped the long arm of the law.

Then came the sudden lockdown and the Delhi police, guided by its political masters constructed a case against some of the key young leadership among the protesters. Initially criminal law sections were applied under which almost all of them obtained bail. Undeterred, the draconian sections 15, (terrorist act), 17 (punishment for raising funds) and/or 18 (conspiracy) of the UAPA were thereafter applied. All these sections form part of Chapter 4 of the Act dealing with Terrorist activities. The National Investigating Agency (NIA) thereafter stepped in, FIRs were filed (in this case FIR Nos 59/2020) constructing a theory behind the “aggravated protests”, and bail was thereafter refused. Apart from these three activists, another 18 remain incarcerated under similar charges and offences.

Before I get into the judgements themselves, a word for the intrepid legal team that ran the defence in these cases. Senior Advocate Siddharth Aggarwal with Advocate Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhari, Nitika Khaitan appeared for Tanha. Advocates Adit S Pujari, Tusharika Mattoo, Kunal Negi appeared for Kalita and Narwal. In cases such as these, the physical and emotional toll on lawyers is immense. Saluts.

Justices Siddharth Mridul and Bhambhani, while granting bail to three student leaders have applied a thoroughness of both, reasoning and creativity. The legal reasoning outlined in the judgement granting bail to Asif Iqbal Tanha (the lead judgement) begins by tracing the legislative history of the UAPA. Under Article 246 of the Constitution, that demarcates India’s federal structure, the judgement outlines that under List 1 of the VIIth Schedule, the “Union List” demarcates the legal right given to Indian Parliament to legislate on laws contained in subjects under that list. Entries 1 and 93 under List 1 of the VIIth Schedule relates to the “Defence of India”.  List-II in the VIIth Schedule relates to the State List List-III to the Concurrent List. Entry-2 of the State List deals with Public Order. Making detailed explorations and distinctions between the two, the Court holds that since Parliament could not pass any law related to ‘law and order’, ‘public order’ issues, the legislative competence and intent of the Indian Parliament, in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. The Court states,

“The purpose of referring to Entry 1 of List-I (Defence of India) and Entry 2 of List-II (Public Order) is to take notice of the fact that since UAPA is a central legislation, it would have been enacted in relation to the ‘defence of India’ as contra distinct from ‘public order’, since it must be presumed that when the Parliament enacted the UAPA, it was acting within the scope of its powers under the constitutional scheme and was therefore enacting a legislation relating to a matter that was within its competence under Article 246 and the Seventh Schedule of the Constitution.

Absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.”

At the outset then the verdicts lay out a stringent provision that will need to be followed by law enforcement in all future cases: that the UAPA and its provisions can only be applied in matters pertaining to the defence of India and the stability of the nation. Exploring the offences that have been laid at the door of these activists, the Judgement in Asif’s case states,

“In our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made”, said the court while granting bail to Asif Tanha.”

The allegation against Asif was that he engaged in protests, chakkajam, to cause complete stoppage of vehicles and blockade of roads, so that supplies and services to the people of Delhi are adversely affected; and also to spread fear and cause riots. But the court held that there was no allegation in the subject charge-sheet that he was leading the co-conspirators in these acts. He was not even the group administrator of any of the WhatsApp groups, which, the allegation goes, were formed “with the sinister aim of organising a protest against the CAA that would cause havoc amongst the ordinary citizenry”. The judgement states that there is only one “specific, particular and overt act” that Asif is stated to have committed, namely that he handed over a SIM card given to him by someone else, to a co-conspirator, which, it is further alleged, was used by the said co-conspirator to send messages on a WhatsApp group. “Other than this one action that is specifically attributed to the appellant, this court is unable to discern any other act or omission attributed specifically to the appellant”, said the HC.

No arms, ammunitions or other weapons were discovered from Asif. The government had argued that even the likelihood that Asif’s acts or omissions may threaten the nation are an offence under the UAPA. On this aspect of ‘likelihood’ of threat and terror, the Court stated,

“The foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised 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.”

“It has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation.”

Thereafter, the court proceeds with particularity and minuteness to meticulously delve into the evolution of stringent provisions in India’s anti-terror laws to hold that laws that involve more stringent provisions of punishment and prevent bail, need to be both narrowly and more strictly applied when it comes to defining an offence. Analysing a slew of judgements and jurisprudence emerging over past decades the Court explores the question,

“What however, is ‘terrorism’ or ‘terror’, from which the meaning of ‘terrorist act’ and other related words may be derived?”

Interestingly drawing a jurisprudential difference between law and order, public order and security of state the judges hark back to the judgement in Ram Manohar Lohia (Dr) vs. State of Bihar[1]:

“55. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”

Delving deep into this question and making sharp and nuanced observations on the question, the Court warns that laws with stringent punishments need narrow and specific, particular applications in each case, to both justify and attract their use. At Para 40 of Asif’s judgement, the Court has observed,

“Another sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed.”

It is through this deductive reasoning in chaining down the alleged offences detailed in the charge sheet related to these three student activists that the Court both deals and does away with the stringent provisions for bail under UAPA outlined in Section 45 Section 43 (D) (5). The Court then proceeds to deal with the applications for bail under ordinary criminal law.

Thereafter, the Court deals with two significant recent verdicts of the Supreme Court related to bail under the UAPA. The first is the NIA v/s Zahoor Ahmad Shah Watali of 2019 where the interpretation led to the view that delving into the merits or demerits of the evidence at the stage of deciding a bail plea is proscribed. Developing this further, the Delhi High Court holds that,

“The decision of the Hon’ble Supreme Court in Watali (supra) proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea; and as a sequitur, for assessing the prima facie veracity of the accusations, the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material placed with the subject charge-sheet. To bring its case within Chapter IV of the UAPA the State must therefore, without calling upon the court to draw inferences and conclusions, show that the accusations made against the appellant prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.”

“In this case, we find that the State’s attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance.”

“61.        Once we are of the opinion, as we are in the present case, that there are no reasonable grounds for believing that the accusations against the appellant are prima facie true, the Proviso to section 43D(5) would not apply; and we must therefore fall back upon the general principles of grant or denial of bail to an accused person charged with certain offences.”

This interpretation of how and where terrorism and acts of terror should be construed has the potential to constrain and limit wild and unsubstantiated allegations in future.

The Right to Protest

It is on the fundamental freedoms granted under Article 19(1) (a) and (b) of the Constitution that this judgement, after many decades, makes a breakthrough. Again, as on other points of contention in this case, a treasure trove of case law has been cited to both interpret and develop the issue of the right to protest. Judgements like those in Mazdoor Kisan Shakti Sangathan vs Union of India and Anr ((2018) 17 SCC 324.), Babulal Parate v. State of Maharashtra [AIR 1961 SC 884], Kameshwar Prasad v. State of Bihar [AIR 1962 SC 1166], the Constitution Bench judgment, Himat Lal K. Shah v. Commr of Police [(1973) 1 SCC 227] and the Ramlila Maidan Incident, In re [(2012) 5 SCC 1] have all been cited not just uphold this right but hold that such protests are integral to a vibrant, functioning democracy. Citizens and groups have not just the right to peacefully protest. The State cannot put unreasonable curbs or the spirit and need for such protests will be denied. Needless to say, no one has the right to have violent protests. Acts of terror and terrorism are intended to target the integrity of India and destabilise the state. Protests in the heart of the capital, moreover protests that were not outlawed or banned, even if they become obstructive or violent do not amount to terrorism. Those who indulge in or provoke violence can of course be tried under the Penal Code but not under UAPA.

There is a 2021 judgement of the Supreme Court in the Najeeb Case (Union of India v/s K.A. Najeeb, 2021) in which the Supreme Court had held that a person jailed for several years under UAPA cannot be shorn of his fundamental rights. The right to time bound justice through a speedy trial is a fundamental right under Article 21. Hence, the under trial is therefore entitled to be released on bail if the trial is likely to take very long. In that case, the accused had been in jail for 5 years and the maximum punishment he could have been awarded would have been 8 years. The therefore Court released him on bail. In the Delhi case, the State argued that the accused were in jail for only one year and thus even according to Najeeb’s case there had not been prolonged incarceration. The Delhi High Court was clear,

“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.”

In the separate judgements granting bail to Devangana Kalita, the Delhi High Court held that Kalita was a member of certain women’s rights organisations and other groups, and she did participate and help organise protests against the CAA and the NRC in Delhi. But the right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1)(b) of our Constitution, and surely the right to protest is not outlawed and cannot be termed as a “terrorist act” within the meaning of the UAPA.

The court, in clear language and has ruled that, “shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under sections 15 (terrorist act), 17 (punishment for raising funds) and/or 18 (conspiracy) of the UAPA.

“The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions”, opined the HC. Even if Kalita did go ahead and we assume that she made inflammatory speeches, organised chakka jam and instigated women protesters (which the state has alleged), “that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA”, held the court.

In the third judgement granting bail to Natasha Narwal, the Delhi HC said that “no specific, particularised or definite act is attributed to her”, apart from the admitted fact that she took part in the anti CAA protests. The Bench perused the charge sheet and all the materials and said that the allegations made against her are not even borne-out from the material on which they are based. The court said,

“The State cannot thwart grant of bail merely by confusing issues.”

Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, is just evidence that she participated in protests and not incited violence, or committed a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA. These words are quote worthy:

“The line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mind-set gains traction, it would be a sad day for democracy”.

The case of student activist, Natasha Narwal is particularly poignant. Arrested in May 2020, Additional Sessions Judge, Amitabh Rawat had refused her bail holding, that allegations against her were prima facie true (that participating in protests that including blocking of roads was a “terrorist act”) on January 29, 2021. The appeal against this was pending Orders in the Delhi High Court for months when her father, scientist and intellectual Mahavir Narwal, fell ill and succumbed to Covid-19 in May 2021. She was finally given interim bail on May 10, 2021 for three weeks after his death, not being able to meet or see him when he was alive.

The cases of student activists being jailed under UAPA as punishment by a vindictive regime intolerant of democratic dissent and protest has again the spotlighted the case of bad laws which have a potential for blatant misuse. The time is ripe to call for their repeal.

Apart from the UAPA, stringent penal provisions like the section of the IPC on Sedition (124A of the IPC) and laws like the Jammu & Kashmir Public Safety Act (1978) & National Security Act (NSA, 1980) that allow detention of up to two years without trial.

The decades’ long history of the ping-pong as it were between the concentration of state power and people’s assertion of fundamental freedoms (speech, opinion, agitation, organisation) has resulted in a varied jurisprudence on the issue. Conventional penal laws that deal with ‘normal crimes’, to date, contain controversial provisions like section 124A of the IPC that is almost always is attracted or applied to stifle independent views, the “crime” of sedition. India has had 17 governments since it became independent, but none have repealed this section of the law that has been read down in a slew of judgements over 75 years.

Constitutional courts, or all courts, are the critical institutions that balance he overarching power of the state armed with its police and other law enforcement agencies. The curbing of fundamental freedoms, arrests of activists and civil society members protesting policy moves by the executive need to be urgently addressed by a widespread campaign, cutting across civil society and political lines. The Delhi High Court judgement(s) provide another window of opportunity. The next step surely must be a rigorous push for a repeal in these statutes.

Bad laws can be misused by even good governments. Under problematic ones there is a virality of abuse.

(*Till late evening of June 16, the obdurate conduct of the Delhi Police, that reports directly to the Ministry of Home Affairs in the central government, had ensured that the detainees were not released. On June 17, the trial court finally ordered immediate release of all three student activists.)

Related:

A new hope: Student activists charged under UAPA get bail
Creative understanding of UAPA grants freedom from jail for activists: Delhi HC

 

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Natasha, Devangana, Asif to be released from Tihar, two days after securing bail

In clear contempt of the HC order and the law, the Delhi Police sought time till June 21, before releasing them, citing verification issues

17 Jun 2021

Image Courtesy:indiatimes.com

Student activists and Pinjra Tod members Natasha Narwal and Devangana Kalita, along with 25-year-old Jamia student Asif Tanha are to be finally released from the confines of Tihar, two days late, after much back and forth. The three Delhi violence conspiracy case accused were granted bail by the Delhi High Court on June 15, but were not released by the Police on flimsy grounds of “address verification”.

On June 16, the trial court Judge Ravinder Bedi deferred their release by citing “heavy board of bail applications listed before the undersigned”, despite a higher court’s order to release them. The Delhi Police went a step ahead in their unnecessary demands and sought time till June 21 for verification of their addresses and sureties.

In the application filed before the trial court, the centrally governed Delhi Police reportedly stated that their outstation permanent address is pending and could not be completed due to paucity of time. Asif, Natasha and Devangana are permanent residents of Jharkhand, Rohtak and Assam respectively. Using this to their advantage, the Police contended that additional time would be required by the investigating agency in filing the verification report as their personnel would have to travel to these states. These were clearly outright delaying tactics.

Further, the Delhi Police had also sought directions to the UIDAI to verify the Aadhaar card details of their sureties, and that a proper physical verification of their mobile numbers was required. “Further subscriber detail of the above mobile number is being obtained from the concerned service provider to corroborate the same with the version of applicant,” read their plea as per LiveLaw.

Events transpired post bail

As soon as the Delhi High Court granted bail to the three activists, the Delhi Police moved the Supreme Court through a special leave petition appealing against their bail order. Since the trial court deferred the hearing on their release, the activists moved the High Court under section 482 (inherent powers of High Court) of the Code of Criminal Procedure against the Trial Court’s action, arguing that it was violative of their fundamental rights.

On June 17, the same Delhi High Court Bench that had granted bail to the activists heard the urgent matter concerning their release and ordered the Trial Court to consider their release “with alacrity”. The Bench was quoted as saying, “We expect the trial court to proceed with promptitude and expedition and pronounce on the issues pending determination before it forthwith.”

While hearing the arguments, the High Court also seemed confused about the Police’s contention of sending officers to different states for verification when their local Delhi addresses have been used throughout the chargesheet and that these addresses weren’t verified in the long period of one year when they were in custody.

The media reported Justice Bhambhani questioning, “Maybe I’m missing something here. But what is this Assam, Jharkhand thing about. These are local sureties, you’ve had the accused in custody for a year. Chargesheet has been filed.” He also seemed to be surprised about Aadhaar verification and wondered if the Police followed similar protocol in all other cases.

https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gifAs the matter reached back to the trial court, the lawyers of both parties were informed by the Additional Sessions Judge that he had already issued their release warrant. Judge Bedi observed that keeping them imprisoned till the police verified all necessary information was not a plausible reason and shot their argument down.

What is the law on this?

Having kept the three in continued custody for over 48 hours despite a release order in public domain is direct contempt of court. Section 2(b) of The Contempt of Courts Act, 1971, clearly states that wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court shall amount to civil contempt.

The Police ought to have released them on bail but failed to respect the order of the High Court, interfering with the administration of justice. This unusual delay tactic by the State is often abused in extraordinary circumstances only when they’re up against certain dissenting elements. Case in point is Dr. Kafeel Khan, who was granted bail by the Aligarh Chief Judicial Magistrate on 10 February, 2020 but continued to languish in jail for the next three days, despite three release orders from the Magistrate.

He was charged under Indian Penal Code sections for promoting enmity between different religious groups after his speech at AMU on December 12, 2019, in opposition to the citizenship laws. On February 13, he was told that he was booked under the National Security Act, 1980, that led to his further detention until the Allahabad High Court stepped in and set aside the detention order ruling that his speech did not promote violence. Contrary to the allegations of the State, the court accepted after 6 long months, that his speech was a call for unity and integrity!

As a strong and binding precedent, the Supreme Court in Arnab Manoranjan Goswami vs State of Maharashtra and Ors (2020) recorded, “The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

In complete disrespect to the Supreme Court’s precedent and the High Court’s order, the Delhi trial court opined that it was already 6 P.M (on June 16) and that an order could not be passed due to a heavy caseload. Even in normal circumstances, the activists should not have had to approach the High Court again for the implementation of its order!

The Delhi Police has disobeyed not just any order but a significant high court order that has actively crushed its entire narrative on the alleged conspiracy, reading down the UAPA charges. In Natasha Narwal’s bail order (Crl Appeal No. 82 of 2021), the court clearly stated that “the State cannot thwart grant of bail merely by confusing issues.” Unfortunately, that is exactly what has happened over the past few hours, with the additional burden of the lower court’s non-cooperation.

In Arnab Goswami’s bail order, the top court had remarked that courts must be alive to the situation as it prevails on the ground, in the jails and police stations where human dignity has no protector. The courts must constantly be looking to expand this footprint of liberty as a necessity in any democracy but the three activists have been harshly deprived of this.

Related:

Creative understanding of UAPA grants freedom from jail for activists: Delhi HC
A new hope: Student activists charged under UAPA get bail
How the regime is hounding Human Rights Defender Dr. Kafeel Khan

Natasha, Devangana, Asif to be released from Tihar, two days after securing bail

In clear contempt of the HC order and the law, the Delhi Police sought time till June 21, before releasing them, citing verification issues

Image Courtesy:indiatimes.com

Student activists and Pinjra Tod members Natasha Narwal and Devangana Kalita, along with 25-year-old Jamia student Asif Tanha are to be finally released from the confines of Tihar, two days late, after much back and forth. The three Delhi violence conspiracy case accused were granted bail by the Delhi High Court on June 15, but were not released by the Police on flimsy grounds of “address verification”.

On June 16, the trial court Judge Ravinder Bedi deferred their release by citing “heavy board of bail applications listed before the undersigned”, despite a higher court’s order to release them. The Delhi Police went a step ahead in their unnecessary demands and sought time till June 21 for verification of their addresses and sureties.

In the application filed before the trial court, the centrally governed Delhi Police reportedly stated that their outstation permanent address is pending and could not be completed due to paucity of time. Asif, Natasha and Devangana are permanent residents of Jharkhand, Rohtak and Assam respectively. Using this to their advantage, the Police contended that additional time would be required by the investigating agency in filing the verification report as their personnel would have to travel to these states. These were clearly outright delaying tactics.

Further, the Delhi Police had also sought directions to the UIDAI to verify the Aadhaar card details of their sureties, and that a proper physical verification of their mobile numbers was required. “Further subscriber detail of the above mobile number is being obtained from the concerned service provider to corroborate the same with the version of applicant,” read their plea as per LiveLaw.

Events transpired post bail

As soon as the Delhi High Court granted bail to the three activists, the Delhi Police moved the Supreme Court through a special leave petition appealing against their bail order. Since the trial court deferred the hearing on their release, the activists moved the High Court under section 482 (inherent powers of High Court) of the Code of Criminal Procedure against the Trial Court’s action, arguing that it was violative of their fundamental rights.

On June 17, the same Delhi High Court Bench that had granted bail to the activists heard the urgent matter concerning their release and ordered the Trial Court to consider their release “with alacrity”. The Bench was quoted as saying, “We expect the trial court to proceed with promptitude and expedition and pronounce on the issues pending determination before it forthwith.”

While hearing the arguments, the High Court also seemed confused about the Police’s contention of sending officers to different states for verification when their local Delhi addresses have been used throughout the chargesheet and that these addresses weren’t verified in the long period of one year when they were in custody.

The media reported Justice Bhambhani questioning, “Maybe I’m missing something here. But what is this Assam, Jharkhand thing about. These are local sureties, you’ve had the accused in custody for a year. Chargesheet has been filed.” He also seemed to be surprised about Aadhaar verification and wondered if the Police followed similar protocol in all other cases.

https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gifAs the matter reached back to the trial court, the lawyers of both parties were informed by the Additional Sessions Judge that he had already issued their release warrant. Judge Bedi observed that keeping them imprisoned till the police verified all necessary information was not a plausible reason and shot their argument down.

What is the law on this?

Having kept the three in continued custody for over 48 hours despite a release order in public domain is direct contempt of court. Section 2(b) of The Contempt of Courts Act, 1971, clearly states that wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court shall amount to civil contempt.

The Police ought to have released them on bail but failed to respect the order of the High Court, interfering with the administration of justice. This unusual delay tactic by the State is often abused in extraordinary circumstances only when they’re up against certain dissenting elements. Case in point is Dr. Kafeel Khan, who was granted bail by the Aligarh Chief Judicial Magistrate on 10 February, 2020 but continued to languish in jail for the next three days, despite three release orders from the Magistrate.

He was charged under Indian Penal Code sections for promoting enmity between different religious groups after his speech at AMU on December 12, 2019, in opposition to the citizenship laws. On February 13, he was told that he was booked under the National Security Act, 1980, that led to his further detention until the Allahabad High Court stepped in and set aside the detention order ruling that his speech did not promote violence. Contrary to the allegations of the State, the court accepted after 6 long months, that his speech was a call for unity and integrity!

As a strong and binding precedent, the Supreme Court in Arnab Manoranjan Goswami vs State of Maharashtra and Ors (2020) recorded, “The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

In complete disrespect to the Supreme Court’s precedent and the High Court’s order, the Delhi trial court opined that it was already 6 P.M (on June 16) and that an order could not be passed due to a heavy caseload. Even in normal circumstances, the activists should not have had to approach the High Court again for the implementation of its order!

The Delhi Police has disobeyed not just any order but a significant high court order that has actively crushed its entire narrative on the alleged conspiracy, reading down the UAPA charges. In Natasha Narwal’s bail order (Crl Appeal No. 82 of 2021), the court clearly stated that “the State cannot thwart grant of bail merely by confusing issues.” Unfortunately, that is exactly what has happened over the past few hours, with the additional burden of the lower court’s non-cooperation.

In Arnab Goswami’s bail order, the top court had remarked that courts must be alive to the situation as it prevails on the ground, in the jails and police stations where human dignity has no protector. The courts must constantly be looking to expand this footprint of liberty as a necessity in any democracy but the three activists have been harshly deprived of this.

Related:

Creative understanding of UAPA grants freedom from jail for activists: Delhi HC
A new hope: Student activists charged under UAPA get bail
How the regime is hounding Human Rights Defender Dr. Kafeel Khan

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“How long will or can the moon be caged, hum dekhenge...”

Six months in prison for dreaming of freedom? Citizens demand the release of Devangana, Natasha and all anti-CAA-NRC-NPR protesters

21 Nov 2020

Image Courtesy:thewire.in

Natasha Narwal and Devangana Kalita should have been working on their research projects, perhaps getting a few steps closer to writing their doctoral dissertations by now. Instead they have written letters showcasing the strength it needs to survive in jail, from jail. Where they have been lodged for speaking at meetings in solidarity with those protesting to safeguard their rights as Indian citizens. 

“It is women’s defiance and collectivity that helped one survive ‘outside’, it is the same that is crucial to surviving ‘inside’, in jail. There are so many life stories, a new world, a different world, pushing you constantly to think, there is so much to absorb, so much pain, so much despair, yet moments of joy, of singing, of surviving," wrote Devangana.

“How long will or can the moon be caged, hum dekhenge..” penned Natasha.

The letters were shared by their fellow activists from the Pinjra Tod collective, and are examples of strength Devangana and Natasha have continued to show during their long incarceration. The words will also give other young activists, especially women activists “further strength and courage to continue the struggle outside, and that the resistance against the attack on democratic rights will continue” stated Pinjratod members who organised an online public meeting marking six months since Devangana and Natasha have been in jail.

Natasha and Devangana’s families too shared their thoughts at the meeting. Mahavir Narwal said he had much to learn from his daughter, “She is in fact not feeling jailed, she is feeling she is like all other people. Those outside are also suffering, just like those in jails. Nobody in my family is demoralised or intimidated. We are all part of your resistance,” he said, adding that resistance was “not just to get them out of jail but to save all good ideas, truth”. Hemchandra Kalita said this was not just about Natasha and Devangana, “but for the cause of democracy and the sake of the Constitution… Every minority should be protected but every minority is being arrested.”

"Six months in prison for dreaming of freedom?" was the appropriate title of the public meeting organised on November 19 by Pinjra Tod. Participants including several students, activists, teachers and eminent citizens gathered in solidarity with Devangana and Natasha, and were united in their call for the release of all arrested anti CAA-NRC-NPR protestors, and condemned the “growing abuses to democratic rights in the country”. 

President of PUCL Rajasthan, Kavita Shrivastava, recalled how Natasha and Devangana's “assertion of democratic rights have been criminalised by slapping the UAPA law on them”.  She said “the present government fears ideas, and particularly the ideas of women. The use of violence and draconian laws, particularly UAPA to silence dissenting voices has now become commonplace in India." Shrivastava called for an “alliance against the UAPA law, and the need to connect the families of those arrested in the anti-CAA-NRC-NPR protests.” 

Senior journalist Pamela Phillipose, shared spoke the history of Pinjra Tod collective and illustrated its continuity between the political articulation against discriminatory hostel regulations, to speaking out against sexual violence, to participating in the anti-CAA-NRC-NPR mass movement. She stressed on “that those speaking about justice and equality within the Constitution, and peacefully upholding the preamble, have been charged with anti-terror laws.” 

Historian Uma Chakravarty recalled the similarities of the arrests of activists being carried out now to that of Snehalata Reddy, the only woman political prisoner to have died in incarceration during the Emergency, "I am reminded of the arrests during that time, conforming to the adage whereby there was no vakil, no daleel and no appeal. So you just rotted in jail like she did, occasionally getting released under one law and then re-arrested under another, as we see now."  She asked, “Is this the India we brought in on August 15, 1947, the country so many people went to jail innumerable times for?”. She added that women like Gulfisha, Ishrat, Safoora, Natasha and Devangana, were an inspiration in the way they are fighting for justice. Poet  Akhil Katyal read out some of his words written in solidarity with those arrested, “These days the sun climbs so slowly, even the fallen seeds throw long shadows, above them the hours spread like locusts, like hunger, like an illness refusing to relent, a government uses this convenience to make some arrests.” 

“There are many who are still in jail, line Varavara Rao, Fr Stan of Jharkhand, the student activists should be released, all political prisoners should all be released. We must talk about what we can do in the future. Putting them in jail is not a new tactic. They have just intensified it” said Dalit activist and singer Sambhaji Bhagat, adding the plan is to bring a Hindu rashtra, a Bharahmin rashtra, the plan is not hidden. He asked for the urgency for people’s mass movements to overcome the present situation in the country. He hailed Devangana and Natasha as  young activists, “who answer and ask different questions, and who should be leading democratic struggles in the country” and called for alliances “between all democratic forces in the country to uphold the Constitution”.  

Devangana Kalita, is an MPhil student at JNU's Centre for Women's Studies is the founding member of Pinjra Tod, a collective of women students and alumni from colleges across Delhi that takes up causes like movement against curfew and restrictive timings for women students in hostels and paying guest accommodations.  Kalita was arrested on May 23, 2020 in FIR No. 50/2020 registered at the Jafrabad Police Station in relation to the communal violence which had broken out in North East Delhi in February 2020. It was alleged that she mobilized a crowd of a particular community at the protest site near Jafrabad metro station on February 22 and 23 with an intention to instigate a section of people to indulge in rioting that led to loss of lives and destruction of public and private properties. But she was granted bail by the Delhi High Court citing lack of evidence to show that she instigated violence or gave a hate speech. She was also directed to furnish a personal bond of Rs 20,000 and a surety of the like amount. She has also been booked under the Unlawful Activities (Prevention) Act, in a separate case related to the communal violence, for allegedly being part of a “premeditated conspiracy” in the riots. In all, four cases have been registered against Kalita, including and in relation to the riots and violence in old Delhi’s Daryaganj area during protests against the citizenship laws in December 2019.

On September 17, a Delhi Court granted bail to Pinjra Tod member Natasha Narwal, a Jawaharlal Nehru University student who is accused of instigating the riots that took place in the northeast districts of Delhi, news agencies reported. It was the  trial court in Karkardooma granted bail to Narwal in a case registered against her under the Unlawful Activities Prevention Act. Narwal has been lodged in Tihar prison as an accused under three FIRs that have been registered against her for allegedly fuelling the riots. On March 23, Narwal was arrested in connection with a case filed against certain Anti-CAA protesters in Jaffrabad. However, she was immediately released on bail. Soon after being released on bail, another FIR was registered against for allegedly instigating the Delhi riots and she has been in judicial custody ever since. Narwal has been accused of various offences under the Indian Penal Code as well as the provisions of the Unlawful Activities Prevention Act. The cases against her and Kalita, are being investigated by the Crime Branch of the Delhi Police.  

The PinjraTod meeting may be seen here:

https://m.facebook.com/story.php?story_fbid=725024698108250&id=879749405444778&notif_t=page_post_reaction&notif_id=1605868261701757&ref=m_notif

 

Related:

SC refuses to interfere in Devangana Kalita’s bail order
Front Line Defenders condemns arrest of Pinjra Tod activists, demands immediate release
Bail in one case, custody in another for two Pinjra Tod activists
Delhi Police arrest Jamia Millia Islamia student leader Asif Iqbal Tanha
Delhi HC again adjourns petition about police accountability for ‘indiscriminate’ arrests: Justice delayed?
Policing in the times of corona has many tones, depending on who you are

 

“How long will or can the moon be caged, hum dekhenge...”

Six months in prison for dreaming of freedom? Citizens demand the release of Devangana, Natasha and all anti-CAA-NRC-NPR protesters

Image Courtesy:thewire.in

Natasha Narwal and Devangana Kalita should have been working on their research projects, perhaps getting a few steps closer to writing their doctoral dissertations by now. Instead they have written letters showcasing the strength it needs to survive in jail, from jail. Where they have been lodged for speaking at meetings in solidarity with those protesting to safeguard their rights as Indian citizens. 

“It is women’s defiance and collectivity that helped one survive ‘outside’, it is the same that is crucial to surviving ‘inside’, in jail. There are so many life stories, a new world, a different world, pushing you constantly to think, there is so much to absorb, so much pain, so much despair, yet moments of joy, of singing, of surviving," wrote Devangana.

“How long will or can the moon be caged, hum dekhenge..” penned Natasha.

The letters were shared by their fellow activists from the Pinjra Tod collective, and are examples of strength Devangana and Natasha have continued to show during their long incarceration. The words will also give other young activists, especially women activists “further strength and courage to continue the struggle outside, and that the resistance against the attack on democratic rights will continue” stated Pinjratod members who organised an online public meeting marking six months since Devangana and Natasha have been in jail.

Natasha and Devangana’s families too shared their thoughts at the meeting. Mahavir Narwal said he had much to learn from his daughter, “She is in fact not feeling jailed, she is feeling she is like all other people. Those outside are also suffering, just like those in jails. Nobody in my family is demoralised or intimidated. We are all part of your resistance,” he said, adding that resistance was “not just to get them out of jail but to save all good ideas, truth”. Hemchandra Kalita said this was not just about Natasha and Devangana, “but for the cause of democracy and the sake of the Constitution… Every minority should be protected but every minority is being arrested.”

"Six months in prison for dreaming of freedom?" was the appropriate title of the public meeting organised on November 19 by Pinjra Tod. Participants including several students, activists, teachers and eminent citizens gathered in solidarity with Devangana and Natasha, and were united in their call for the release of all arrested anti CAA-NRC-NPR protestors, and condemned the “growing abuses to democratic rights in the country”. 

President of PUCL Rajasthan, Kavita Shrivastava, recalled how Natasha and Devangana's “assertion of democratic rights have been criminalised by slapping the UAPA law on them”.  She said “the present government fears ideas, and particularly the ideas of women. The use of violence and draconian laws, particularly UAPA to silence dissenting voices has now become commonplace in India." Shrivastava called for an “alliance against the UAPA law, and the need to connect the families of those arrested in the anti-CAA-NRC-NPR protests.” 

Senior journalist Pamela Phillipose, shared spoke the history of Pinjra Tod collective and illustrated its continuity between the political articulation against discriminatory hostel regulations, to speaking out against sexual violence, to participating in the anti-CAA-NRC-NPR mass movement. She stressed on “that those speaking about justice and equality within the Constitution, and peacefully upholding the preamble, have been charged with anti-terror laws.” 

Historian Uma Chakravarty recalled the similarities of the arrests of activists being carried out now to that of Snehalata Reddy, the only woman political prisoner to have died in incarceration during the Emergency, "I am reminded of the arrests during that time, conforming to the adage whereby there was no vakil, no daleel and no appeal. So you just rotted in jail like she did, occasionally getting released under one law and then re-arrested under another, as we see now."  She asked, “Is this the India we brought in on August 15, 1947, the country so many people went to jail innumerable times for?”. She added that women like Gulfisha, Ishrat, Safoora, Natasha and Devangana, were an inspiration in the way they are fighting for justice. Poet  Akhil Katyal read out some of his words written in solidarity with those arrested, “These days the sun climbs so slowly, even the fallen seeds throw long shadows, above them the hours spread like locusts, like hunger, like an illness refusing to relent, a government uses this convenience to make some arrests.” 

“There are many who are still in jail, line Varavara Rao, Fr Stan of Jharkhand, the student activists should be released, all political prisoners should all be released. We must talk about what we can do in the future. Putting them in jail is not a new tactic. They have just intensified it” said Dalit activist and singer Sambhaji Bhagat, adding the plan is to bring a Hindu rashtra, a Bharahmin rashtra, the plan is not hidden. He asked for the urgency for people’s mass movements to overcome the present situation in the country. He hailed Devangana and Natasha as  young activists, “who answer and ask different questions, and who should be leading democratic struggles in the country” and called for alliances “between all democratic forces in the country to uphold the Constitution”.  

Devangana Kalita, is an MPhil student at JNU's Centre for Women's Studies is the founding member of Pinjra Tod, a collective of women students and alumni from colleges across Delhi that takes up causes like movement against curfew and restrictive timings for women students in hostels and paying guest accommodations.  Kalita was arrested on May 23, 2020 in FIR No. 50/2020 registered at the Jafrabad Police Station in relation to the communal violence which had broken out in North East Delhi in February 2020. It was alleged that she mobilized a crowd of a particular community at the protest site near Jafrabad metro station on February 22 and 23 with an intention to instigate a section of people to indulge in rioting that led to loss of lives and destruction of public and private properties. But she was granted bail by the Delhi High Court citing lack of evidence to show that she instigated violence or gave a hate speech. She was also directed to furnish a personal bond of Rs 20,000 and a surety of the like amount. She has also been booked under the Unlawful Activities (Prevention) Act, in a separate case related to the communal violence, for allegedly being part of a “premeditated conspiracy” in the riots. In all, four cases have been registered against Kalita, including and in relation to the riots and violence in old Delhi’s Daryaganj area during protests against the citizenship laws in December 2019.

On September 17, a Delhi Court granted bail to Pinjra Tod member Natasha Narwal, a Jawaharlal Nehru University student who is accused of instigating the riots that took place in the northeast districts of Delhi, news agencies reported. It was the  trial court in Karkardooma granted bail to Narwal in a case registered against her under the Unlawful Activities Prevention Act. Narwal has been lodged in Tihar prison as an accused under three FIRs that have been registered against her for allegedly fuelling the riots. On March 23, Narwal was arrested in connection with a case filed against certain Anti-CAA protesters in Jaffrabad. However, she was immediately released on bail. Soon after being released on bail, another FIR was registered against for allegedly instigating the Delhi riots and she has been in judicial custody ever since. Narwal has been accused of various offences under the Indian Penal Code as well as the provisions of the Unlawful Activities Prevention Act. The cases against her and Kalita, are being investigated by the Crime Branch of the Delhi Police.  

The PinjraTod meeting may be seen here:

https://m.facebook.com/story.php?story_fbid=725024698108250&id=879749405444778&notif_t=page_post_reaction&notif_id=1605868261701757&ref=m_notif

 

Related:

SC refuses to interfere in Devangana Kalita’s bail order
Front Line Defenders condemns arrest of Pinjra Tod activists, demands immediate release
Bail in one case, custody in another for two Pinjra Tod activists
Delhi Police arrest Jamia Millia Islamia student leader Asif Iqbal Tanha
Delhi HC again adjourns petition about police accountability for ‘indiscriminate’ arrests: Justice delayed?
Policing in the times of corona has many tones, depending on who you are

 

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Front Line Defenders condemns arrest of Pinjra Tod activists, demands immediate release

Devangana Kalita and Natasha Narwal were arrested by the Delhi police for their participation in anti-CAA protests and alleged involvement in the Delhi riots

30 May 2020

Delhi PoliceImage Courtesy:nenow.in

The spate of arrests and deliberate targeting of student activists continues in the country’s capital even as the country is under a nationwide coronavirus lockdown. Even after the Supreme Court issued a directive asking states to de-congest prisons in a bid to curb the transmission there, the Delhi Police seem to be doing everything in their power to crackdown on activists and ensure they remain under detention, not giving a thought to their health.

After Safoora Zargar, Meeran Haider, Gulfisha Fatima, Shifa-Ur-Rahman, Asif Iqbal Tanha, the police arrested Devangana Kalita and Natasha Narwal of the feminist collective Pinjra Tod for allegedly taking part in anti-Citizenship Amendment Act (CAA) protests at Jaffrabad in February.

Kalita and Narwal, both belong to the Jawaharlal Nehru University (JNU), an institution which along with the Jamia Millia Islamia University has seen the wrath of the Delhi police and central government for fighting for their rights – be it protests against hike in fees, hostel curfews for women or opposing the CAA.

In a statement, Front Line Defenders, an organization working with the aim of protecting human rights defenders, said, “In defending the Constitution and protesting the CAA, Devangana Kalita and Natasha Narwal are protesting against the systematic targeting of minority communities and the removal of legal and social safeguards aimed at protecting some of India’s most vulnerable groups.”

Explaining the details of the arrest of the two women activists, Front Line Defenders put forth an appeal to the authorities for their release.

The chronology of Kalita and Narwal’s arrest

On May 23, 2020, the Special Crimes Cell of the Delhi Police arrested Kalita and Narwal under FIR 48/2020 for their participating in the anti-CAA protests in Jaffrabad in North East Delhi in February. They were booked under Sections 186 (obstructing a public servant in discharge of public functions), 341 (wrongful restraint) and 353 (assault or criminal force to deter a public servant from discharge) of the Indian Penal Code.

On May 24, 2020, the District Metropolitan Magistrate they were produced before, granted bail to them after a special hearing that took place at the Mandoli Jail in which the judge noted that in protesting, Kalita and Narwal were only exercising their freedom of expression.

However, they were never released despite being granted bail and on May 26, 2020, the Delhi Special Crime Cell proposed for their remand for 14 days after filing another FIR against them. The new FIR 50/2020, contained serious charges including Sections 302 (murder), 307 (attempt to murder) and 120B (criminal conspiracy) of the IPC, apart from offences under the Arms Act and Prevention of Destruction of Public Property Act. This FIR was filed even though the police failed to prove the earlier charges, only to keep them in prison at any cost. The hearing was held on 28 May but due to COVID-19, was held inside the jail premises, and the defenders had difficulty obtaining legal representation. The defenders were sentenced to a further 14 days in Tihar prison till June 11.

Arrests follow a similar pattern

Prior to Narwal and Kalita, Safoora Zargar, Meeran Haider, Umar Khalid, Asif Iqbal Tanha, Shifa-Ur-Rahman, Tahir Hussain (AAP Councilor) had been arrested under the stringent Unlawful Activities Prevention Act (UAPA). Front Line Defenders notes that in each of the arrests, there is a disturbing pattern of including more serious charges – including under anti-terror laws – post arrest, to ensure continued incarceration, despite the risk of Covid-19.

The organization notes that the activists are facing prolonged detention as a direct reprisal to their peaceful human rights work and condemns the ongoing judicial harassment of these human rights defenders. It says that the arrests are a cause of concern as they are done with an aim to terrorize and silence the activists.

Appeal by Front Line Defenders

In light of this, the organization has urged the authorities in India to:

1. Immediately release Devangana Kalita and Natasha Narwal and remove all charges against the two defenders, including the two FIRs 48/2020 and 50/2020 under which they have been booked, as Front Line Defenders believes that they are being targeted solely as a result of their legitimate and peaceful work in the defence of human rights;

2. Cease the ongoing judicial harassment and intimidation of human rights defenders protesting the Citizenship Amendment Act, especially through the use of anti-terror laws, and release all those currently held in jail;

3. Ensure that Devangana Kalita and Natasha Narwal and all human rights defenders who have been arrested due to their peaceful protests against the CAA are given the right to access legal representation, family members and to medical treatment where necessary in line with India’s national and international obligations;

4. Guarantee in all circumstances that all human rights defenders in India are able to carry out their legitimate human rights activities without fear of reprisals, and free of all restrictions including police and judicial harassment.

Now, media reports say Narwal has been booked under the stringent Unlawful Activities Prevention Act (UAPA) for her alleged involvement in inciting the communal violence that took place in North East Delhi in February. Narwal has become the seventh person to be booked under the UAPA by the Delhi police.

Related:

Bail in one case, custody in another for two Pinjra Tod activists
Attack on anti-CAA activists continue, Aligarh Muslim University (AMU) students arrested
Student activist Safoora Zargar, denied bail, judicial custody extended till June 25

Front Line Defenders condemns arrest of Pinjra Tod activists, demands immediate release

Devangana Kalita and Natasha Narwal were arrested by the Delhi police for their participation in anti-CAA protests and alleged involvement in the Delhi riots

Delhi PoliceImage Courtesy:nenow.in

The spate of arrests and deliberate targeting of student activists continues in the country’s capital even as the country is under a nationwide coronavirus lockdown. Even after the Supreme Court issued a directive asking states to de-congest prisons in a bid to curb the transmission there, the Delhi Police seem to be doing everything in their power to crackdown on activists and ensure they remain under detention, not giving a thought to their health.

After Safoora Zargar, Meeran Haider, Gulfisha Fatima, Shifa-Ur-Rahman, Asif Iqbal Tanha, the police arrested Devangana Kalita and Natasha Narwal of the feminist collective Pinjra Tod for allegedly taking part in anti-Citizenship Amendment Act (CAA) protests at Jaffrabad in February.

Kalita and Narwal, both belong to the Jawaharlal Nehru University (JNU), an institution which along with the Jamia Millia Islamia University has seen the wrath of the Delhi police and central government for fighting for their rights – be it protests against hike in fees, hostel curfews for women or opposing the CAA.

In a statement, Front Line Defenders, an organization working with the aim of protecting human rights defenders, said, “In defending the Constitution and protesting the CAA, Devangana Kalita and Natasha Narwal are protesting against the systematic targeting of minority communities and the removal of legal and social safeguards aimed at protecting some of India’s most vulnerable groups.”

Explaining the details of the arrest of the two women activists, Front Line Defenders put forth an appeal to the authorities for their release.

The chronology of Kalita and Narwal’s arrest

On May 23, 2020, the Special Crimes Cell of the Delhi Police arrested Kalita and Narwal under FIR 48/2020 for their participating in the anti-CAA protests in Jaffrabad in North East Delhi in February. They were booked under Sections 186 (obstructing a public servant in discharge of public functions), 341 (wrongful restraint) and 353 (assault or criminal force to deter a public servant from discharge) of the Indian Penal Code.

On May 24, 2020, the District Metropolitan Magistrate they were produced before, granted bail to them after a special hearing that took place at the Mandoli Jail in which the judge noted that in protesting, Kalita and Narwal were only exercising their freedom of expression.

However, they were never released despite being granted bail and on May 26, 2020, the Delhi Special Crime Cell proposed for their remand for 14 days after filing another FIR against them. The new FIR 50/2020, contained serious charges including Sections 302 (murder), 307 (attempt to murder) and 120B (criminal conspiracy) of the IPC, apart from offences under the Arms Act and Prevention of Destruction of Public Property Act. This FIR was filed even though the police failed to prove the earlier charges, only to keep them in prison at any cost. The hearing was held on 28 May but due to COVID-19, was held inside the jail premises, and the defenders had difficulty obtaining legal representation. The defenders were sentenced to a further 14 days in Tihar prison till June 11.

Arrests follow a similar pattern

Prior to Narwal and Kalita, Safoora Zargar, Meeran Haider, Umar Khalid, Asif Iqbal Tanha, Shifa-Ur-Rahman, Tahir Hussain (AAP Councilor) had been arrested under the stringent Unlawful Activities Prevention Act (UAPA). Front Line Defenders notes that in each of the arrests, there is a disturbing pattern of including more serious charges – including under anti-terror laws – post arrest, to ensure continued incarceration, despite the risk of Covid-19.

The organization notes that the activists are facing prolonged detention as a direct reprisal to their peaceful human rights work and condemns the ongoing judicial harassment of these human rights defenders. It says that the arrests are a cause of concern as they are done with an aim to terrorize and silence the activists.

Appeal by Front Line Defenders

In light of this, the organization has urged the authorities in India to:

1. Immediately release Devangana Kalita and Natasha Narwal and remove all charges against the two defenders, including the two FIRs 48/2020 and 50/2020 under which they have been booked, as Front Line Defenders believes that they are being targeted solely as a result of their legitimate and peaceful work in the defence of human rights;

2. Cease the ongoing judicial harassment and intimidation of human rights defenders protesting the Citizenship Amendment Act, especially through the use of anti-terror laws, and release all those currently held in jail;

3. Ensure that Devangana Kalita and Natasha Narwal and all human rights defenders who have been arrested due to their peaceful protests against the CAA are given the right to access legal representation, family members and to medical treatment where necessary in line with India’s national and international obligations;

4. Guarantee in all circumstances that all human rights defenders in India are able to carry out their legitimate human rights activities without fear of reprisals, and free of all restrictions including police and judicial harassment.

Now, media reports say Narwal has been booked under the stringent Unlawful Activities Prevention Act (UAPA) for her alleged involvement in inciting the communal violence that took place in North East Delhi in February. Narwal has become the seventh person to be booked under the UAPA by the Delhi police.

Related:

Bail in one case, custody in another for two Pinjra Tod activists
Attack on anti-CAA activists continue, Aligarh Muslim University (AMU) students arrested
Student activist Safoora Zargar, denied bail, judicial custody extended till June 25

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