'HC Judgment Waters Down UAPA, Dilutes It, Reads It Down & Says That Otherwise It Would Not Pass Muster Of Parliament': SG Tushar Mehta Tells SC -Courtroom Exchange

In the challenge to the grant of bail by the Delhi High Court to 3 anti-CAA student activists Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita, Solicitor General Tushar Mehta vehemently prayed for a stay of the impugned judgment except the operative part granting bail, urging that it has the effect of watering down and reading down the UAPA.

"The High Court says that the intent and purpose of introducing the UAPA and amending it to bring terrorist activities within its scope 'was and could have only been those acts which have a profound impact on defence of India; nothing more and nothing less'! The HC says that the UAPA could have been enacted by Parliament since Entry 1 and Entry 93 in List 1 can bring it within the competence of the Parliament! Let me tell you what Entry 1 and 93 are- they relate to defence of India and preparation for defence in times of war! So except in these circumstances, if the UAPA is used, the Act is unconstitutional?! ", the SG told the bench of Justices Hemant Gupta and V. Ramasubramananian.

"The HC says that it was neither the intent nor the purpose of enacting UAPA that other offences of usual or ordinary kind, however grave in nature and extent, should also be covered by the UAPA, since such conventional matters would fall in Entry 1 of List II, which is public order, or Entry 1 of List III, which is criminal law? So if I kill someone in a murder attempt, and if I can be booked under 302, UAPA would not apply even if I am terrorist?! They have watered down the Act and read it down and they say that otherwise it would not pass the muster of Parliament! The HC basically says that for the constitutionality of provisions of sections 15, 16 and 18, it must be taken that Parliament acted within its legislative competence?!", pressed the SG.

The following is the courtroom exchange as it transpired:

At the outset, Justice Gupta had commented that impugned judgments, which were delivered on bail applications, run into 100 pages.

"And I can venture to say that by this judgment, the entire UAPA Act has been turned on its head along with the Constitution! I know the seriousness of what I am saying!", began SG Tushar Mehta.

"The issue is important and would have pan-India ramifications. We would like to issue notice and hear the parties and then decide the matter for the good of the entire country", said Justice Gupta.

The SG prayed that in the meantime, it is his "earnest request" that the order be stayed.

"There are twofold reasons for this- the HC has in its findings recorded virtually an acquittal for the accused. The findings are that the UAPA Act, unless read in a particular manner, in deference to specific Entries in the specified Lists, is unconstitutional! Others are already moving for bail relying on this and the only thing that now trial court will be technically required to do is replace the judgement with this judgement and entertain a discharge application!", he pressed.

Continuing, "with profound respect", the SG advanced, "This is something where an incident takes place because the President of US is visiting the country! These are statements of the witnesses- 'Let us create a worldwide campaign that a particular community is...(unclear)'"

As the bench showed an inclination to hear the response of Senior Advocate Kapil Sibal, for the respondents, ASG Aman Lekhi sought to argue, "

The judgement imputes an ambiguity in section 15 (of the UAPA) which was not argued! The judgment substitutes it with the test which the court has created as to what is essentially a terrorist act! 15 has to apply as it stands!"

"It will require examination by the Supreme Court! That is why we are issuing notice!", repeated Justice Gupta.

'From which date does the right to protect include the right to kill people and hurl bombs?'- SG

"One fact must be kept in mind. These are all co-conspirators playing different roles assigned to them! 53 persons died, of which many were police officers! More than 400 people were injured! (Mr. Lekhi clarified that the number is 700). And the HC says 'but eventually the riots were controlled and therefore, the UAPA would not apply'?! Meaning thereby that if I put a bomb somewhere and the bomb disposal squad diffuses the bomb, then it reduces the intensity of my offence! I am just urging Your Lordships' conscience to please stay this judgement!"

The SG proceeds to indicate certain paragraphs of the impugned judgement, as the bench repeats its wish to "first find out what is Mr Sibal's response".

Mr. Sibal says that he agrees with the bench's first reaction that the Court must consider the ramifications and interpretations of the UAPA-

"There is no doubt about that and I will certainly support Your Lordships. We need to have a judgement of this court, which will otherwise impact everybody. I am in agreement. But what we are dealing with right now is the bail application. We are looking at the role played..."

Justice Gupta reiterated that this is what is concerning the bench, that "in a bail application, a 100-page judgement, discussing all law" has been passed. "This is something which is surprising to us!", said the judge.

"What we can say is that bail has been granted to the persons, which will not be affected, but we will otherwise stay the impact of the judgement", observed Justice Gupta.

"Your Lordships may please say that it will not be treated as a precedent in the interim...I am being fair", suggested Mr. Sibal.

Senior advocate Siddharth Agarwal, who represented the accused before the HC, submitted that he wished to propose a slightly different solution-

"In connection with the same FIR, another co-accused was granted bail by the High Court. The state had come up in an appeal before the Supreme Court. Your Lordships had crafted an order saying that all these observations will be restricted to the stage of bail"

"That will not apply here. The impugned order here is setting out the law generally and it is not confined to the facts of this case", countered the ASG.

"The court has made wide-ranging observations when so many people died and hundreds were injured. I am suggesting that they may be stayed. If the accused are out on bail, let them remain out. I am not asking for a stay that nullifies that effect. But please stay the judgement", pressed the SG.

"That may happen only after these petitions have been finally disposed off. Then Your Lordships will have to hear me", interjected Mr. Sibal.

"If we say it will not have any precedent value, that will be enough", said Justice Gupta.

"A stay by the Supreme Court has its own meaning. So many people died and the court, which unfortunately is the High Court, says that 'we are constrained to express that it seems in its anxiety to suppress dissent, in the mind of the State, the line between constitutionally guaranteed right to protest and a terrorist act has become blurred'?! From which date does the right to protest include the right to kill people and to hurl bombs?! The HC says that there is no allegation in the subject chargesheet that the acts extended to the whole of the National Capital of Delhi and so the UAPA will not apply because the disruption was restricted to North East Delhi?! That it would be a stretch to say that the protest affected the community at large?! If I put a bomb and defuse it...", argued the SG vehemently.

"Who put a bomb? Not these people", countered Mr. Sibal.

'If I kill someone in a murder attempt, and if I can be booked under 302, IPC, UAPA would not apply even if I am terrorist?'- SG

Continuing to read from the impugned judgment, the SG urged,

"The HC says that the protest was under a perceived belief that CAA is anti so-and-so! If we go by this judgement, then even the lady who assassinated the former prime minister was protesting only because her view was that something was going against...(unclear)"

"The HC says that the intent and purpose of introducing the UAPA and amending it to bring terrorist activities within its scope 'was and could have only been those acts which have a profound impact on defence of India; nothing more and nothing less'! The HC says that the UAPA could have been enacted by Parliament since Entry 1 and Entry 93 in List 1 can bring it within the competence of the Parliament! Let me tell you what Entry 1 and 93 are- they relate to defence of India and preparation for defence in times of war! So except in these circumstances, if the UAPA is used, the Act is unconstitutional?! ", asked the SG.

"The HC says that it was neither the intent nor the purpose of enacting UAPA that other offences of usual or ordinary kind, however grave in nature and extent, should also be covered by the UAPA, since such conventional matters would fall in Entry 1 of List II, which is public order, or Entry 1 of List III, which is criminal law? So if I kill someone in a murder attempt, and if I can be booked under 302, UAPA would not apply even if I am terrorist?! They have watered down the Act and read it down and they say that otherwise it would not pass the muster of Parliament! The HC basically says that for the constitutionality of provisions of sections 15, 16 and 18, it must be taken that Parliament acted within its legislative competence?!", pressed the SG.

"We agree with you that many questions arise. The constitutionality of the UAPA was not even challenged. It was a bail petition only. That is why we are issuing notice", said Justice Gupta

"So please stay the order! Your Lordships may say that the accused who have been granted bail may not surrender", prayed the SG.

"I myself have said that the Court may say that this may not be treated as a precedent. But staying the matter...", objected Mr. Sibal.

"This order can be misinterpreted", urged the ASG.

"The SG has as much to say about this matter as do we. So let's not do it in this fashion. Your Lordships may have it at any time. Let's argue the matter and in the meantime, let it not be treated as a precedent", insisted Mr. Sibal.

"For a trial court, for this judgment to be cited, it has a different meaning", persisted Mr. Mehta.

"It will not be treated as a precedent and it will not be relied upon by any of the parties, we will add this word", assured Justice Gupta.

"Okay, that is correct. But there is another constitutional issue that Your Lordships will have to consider. This SLP has been filed by one PS Kushwaha, Deputy Commissioner of Police. How is he authorised to file this on behalf of the state? This is the maintainability issue", pointed out Mr. Sibal

"We will decide all issues", assured the bench, proceeding to dictate the order.

'Please say that bail, though not be interfered with at this stage, will be subject to final outcome'- SG

When the bench dictated that the impugned judgment is not be treated as a precedent and shall not be relied upon by "any of the parties", the SG insisted that the court state that the judgment cannot be relied on by "anybody" as "parties" would imply the parties to the instant proceeding case.

"We have said it will not be relied upon in any court", said Justice Gupta.

"Also, please say that their bail will not be interfered at this stage. But it will be subject to the final outcome of this case", pleaded the SG.

"This is never done in a bail matter. I object to that", said Mr. Sibal.

"Something which is obvious need not be said", remarked Justice Gupta.

"Your Lordships not saying it means 'I am entitled to my freedom'. But this liberty is subject to the final outcome!", prayed the SG.

"Bail granted by the High Courts have been cancelled earlier. We have said at this stage it will not be interfered with, which means later it will be open to the court...", said Justice Gupta.