'Terrorist Acts' Under UAPA Only Deal With Matters Impacting 'Defence Of India' And Not Ordinary Law & Order Problems : Delhi High Court

A bench comprising Justices Sidharth Mridul and Anup Jairam Bhambhani was granting bail to Delhi-riots accused Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita, who faced charges for being part of a "larger conspiracy" during the anti-Citizenship (Amendment) Act, 2019 protests which erupted into violence resulting in deaths across North-East Delhi.

Apart from charges under the Indian Penal Code, Tanha, Narwal and Kalita also faced charges under Chapter IV of the UAPA under Sections 15, 17 and 18. While S. 15 engrafts the offence of 'terrorist act', S. 17 lays-down the punishment for raising funds for committing a terrorist act and S. 18 engrafts the offence of 'punishment for conspiracy etc. to commit a terrorist act or any act preparatory to commit a terrorist act'.

Based on an assessment of the facts of the case, while granting bail to the three, not only did the court hold that prima facie the charges do not seem to apply to the acts committed by them, the court also went on to lay crucial parameters on the application and boundaries of S. 15, 17, 18 of the UAPA and of "terrorist act" as mentioned in S. 15.

Here are 10 key takeaways from the judgment authored by Justice Bhambhani on UAPA.

1. "Terrorist Act" U/S 15 UAPA Should Not Be Used Lightly So As To Trivialize Them

Noting that the words 'terrorist act', including conspiracy and act preparatory to the commission of a terrorist act, were brought within the purview of the UAPA by the Amendment of 2004, on the heels of the Parliament repealing POTA in the year 2004 and TADA having already been repealed in 1995, the court said, "the phrase 'terrorist act' must get its colour and flavour from the problem of terrorism as was earlier addressed by the Parliament under TADA and POTA. Though, as seen above, the phrase 'terrorist act' has been defined in a very wide and detailed manner within S. 15 itself, in our opinion, the court must be careful in employing the definitional words and phrases used in S. 15 in their absolute literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of 'terrorist act', without understanding how terrorism is different even from conventional, heinous crime."

2. "Terrorist Activity" Is That Which Travels Beyond The Capacity Of Law Enforcement Agencies To Deal With Under Ordinary Penal Law

The court relied on the Supreme Court's decision in the case of Hitendra Vishnu Thakur, to hold that, "the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law."

As an extension of this same principle, the court held, "Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency 'crying wolf'."

3. Every Terrorist May Be A Criminal, But Every Criminal Cannot Be Labelled "Terrorist"

Once again relying on the Hitendra Vishnu Thakur judgment of the Supreme Court, the court reiterated "...it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every 'terrorist' may be a criminal but every criminal cannot be given the label of a 'terrorist' only to set in motion the more stringent provisions of TADA."

4. "Terrorist Act" Not To Be Equated With A Usual Law & Order Problem In State

Relying on the judgment of the Supreme Court in the case of PUCL v Union of India, the court sought to distinguish between "usual" law and order problems in any state and a "terrorist act", and reproduced observations from the PUCL judgment to the effect that, "... Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character."

5. "Terrorist Act" Can't Be Casually Applied To Cases Falling Within Conventional Offences Under IPC

The court held in this regard that, "notwithstanding the fact that the definition of 'terrorist act' in S.15 UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase 'terrorist act' cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC."

6. For Laws With Serious Penal Consequences (like UAPA) Courts Must Ensure Only Those Intended So By Legislature Are Roped In

Quoting the judgment of the Supreme Court in the case of Sanjay Dutt, the court noted that UAPA is a law with serious penal consequences and reiterated that, "when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute "are not roped in by stretching the law".

The bench elaborated, "It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed narrowly in order to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the Legislature never intended to punish."

8. "Terrorist Activity" Under Amended UAPA Implies Matters Of Profound Impact On "Defence Of India" – Nothing More, Nothing Less

Defining the contours of "terrorist act" under S. 15 UAPA, the court said, "In our opinion, the intent and purport of the 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."

9. Usual Offences No Matter How Grave, Egregious Or Heinous Are Not Covered Under UAPA

Highlighting that law and order fall under List II of the Constitution, the court said that, "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."

10. Presumption Of Offence Under S. 15 As Provided In S. 43E Only If Arms, Explosives Or Other Substances Recovered From Accused

Noting that there is no allegation in the present case whatsoever that arms, ammunition and other articles, that were supposedly to be used as weapons, were recovered from or at the instance of Tanha, Narwal or Kalita, the court said, "In this context the provisions of S. 43E of the UAPA may be noted, which contain a presumption against an accused person, to the effect that unless the contrary is shown, the court shall presume that the accused had committed an offence under section 15 provided it is proved that the arms, explosives or other substances were recovered from the possession of the accused and there is reason to believe that these were used in the commission of the offence; or finger prints or other definitive evidence suggesting involvement of the accused was found at the site of the offence. In the present case, since there is not even a whisper of an allegation that any of the articles referred to above were even recovered from the possession or at the instance of the appellant, the question of any presumption arising under S. 43E does not arise."

11. To Bring Case Within Chapter IV Of UAPA, State Can't Call Upon Court To Draw Inferences & Conclusions

Importantly, and to conclude, the court held that, "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."

12. Burden to demonstrate prima facie case on the prosecution

Importantly, the Court also held that the burden to demonstrate a prima facie case to apply the rigour against grant of bail under Section 43D(5) of UAPA is on the prosecution.

"Correspondingly therefore, under section 43D(5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution"

Also Read : 'Right To Protest Not 'Terrorist Act' Under UAPA' : Delhi High Court Finds No Prima Facie Case Against Asif Iqbal Tanha, Natasha Narwal & Devangana Kalita

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