Supreme Court Issues Notice On NIA's Plea Challenging HC Order Which Held Mere Attendance Of 'Jihadi' Meetings Won't Be "Terrorist Act" Under UAPA

While granting bail, the High Court had held, "In the absence of any prima facie case, restrictions imposed by sub-section (5) of section 43-D per se do not prevent a Constitutional Court from granting bail on the grounds of violation of part III of the Constitution." The High Court had further observed that merely attending the meetings of Al-Hind, which is not a banned organization, or meetings of jihadi organizations will not amount to offence of "terrorist activity" under the UAPA.

Upon hearing the submissions made by the Additional Solicitor General, Ms. Aishwarya Bhati, a Bench comprising the Chief Justice of India, D.Y. Chandrachud and Justice Hima Kohli issued notice and made it returnable in four weeks at ASG's request.

At the outset the CJI enquired, "Al-Hind is not a banned organisation under the schedule to the UAPA Act?"

Ms. Bhati apprised that Bench the Unlawful Activities (Prevention) Act, 1967 takes in its fold two kinds of organisations. One is the proscribed terrorist organisation and the other is terrorist gang. Ms. Bhati emphasised that both have been defined in the definition clause of the Act.

The CJI asked the ASG, "There is no terrorist acts attributable to these people."

Ms. Bhati submitted that the respondent in the present matter was the one who had recruited another accused (A20), whose bail was rejected by the High Court stating that he was in direct contact with ISIS.

"As per the chargesheet, they were giving support to ISIS."

The CJI enquired, "How long was he in jail?"

Ms. Bhati responded, "About a year. Chargesheet by NIA is in 2020."

Thereafter, briefly touching upon the merits of the matter, the ASG submitted that the High Court had committed a grave error not only in considering the law but also the facts of the case. The factual error pertained to the role of the respondent, who was recruiting others for a terrorist gang.

Elucidating on the 'grave error of law' made by the High Court, Ms Bhati submitted that it had stated that in absence of any allegations of commission of offence under Section 15 [Terrorist Act], there cannot be any question of invoking Section 18[Punishment for conspiracy, etc], Section 18A[Punishment for organising of terrorist camps], 18B[Punishment for recruiting of any person or persons for terrorist act] and 20[Punishment for being member of terrorist gang or organisation]. She added that the provision invoked can exist independent of invocation of Section 15.

"The High Court says that if there is no terrorist act, then Sections 18, 16, 20 does not apply. We submit these can independently exist. "

Section 18 deals with punishment for conspiring or attempting to commit or advocating, abetting, advising, inciting or facilitating the commission of a terrorist act or any act preparatory to the commission of the terrorist act. The ASG categorically submitted that even though there is no specific allegation under Section 15, which deals with terrorist act, Section 18, Section 18A, 18B, and Section 20 would independently apply.

According to the ASG, if the interpretation of the High Court is accepted then the punishments for conspiracy, organisation of terrorist camp would be rendered otiose.

[Case Title: Union of India through National Investigation Agency v. Saleem Khan Diary No. 30597/2022]

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