The Supreme Court’s verdict on bail pleas by the accused in the 2020 Delhi riots conspiracy case, booked and arrested under the stringent Unlawful Activities (Prevention) Act (UAPA), is likely to have implications that could go beyond the present case.
The bench granted bail to five persons, but declined to two others, JNU scholars and activists Umar Khalid and Sharjeel Imam, in an order that is more in sync with the prosecution’s arguments relating to security, broadening the ambit of what constitutes a terror act.
To begin with, the then UPA government included a chapter on punishing terrorist activities by amending the old UAPA, following the repeal of two anti-terror laws (the infamous Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and Prevention of Terrorism Act, 2002 (‘POTA’), due to legal challenges and criticism of widespread abuse and human rights concerns.
In its new avatar, the UAPA was as bad, if not worse, as the repealed laws. At that time, the nation faced some serious national security threats in the form of the 2008 Mumbai attacks, the 2001 Parliament attack, and the conflict in Kashmir and the Maoist movement. There was always an apprehension that anti-terror laws could be and often were abused to repress legitimate protest or dissent against the establishment.
According to legal experts, in the way the Supreme Court chose to interpret and apply the legal provisions, it leaned more towards strengthening the State and limiting the rights and legal options of the accused. Thus, the court appears to have prioritised national security over individual liberty.
This is evident in the manner in which it dealt with the defence argument relating to the grant of bail due to the inordinate delay in starting the trial. The court rejected it, saying that delay does not operate as a “trump card” resulting in bail. The court, however, said that the accused could seek bail after the examination of protected witnesses or after one year, whichever is earlier.
The process, therefore, becomes punishment only because of the law. And the normalising of prolonged imprisonment without conviction could be misused against political opponents and other individuals deemed inconvenient to the regime.
Secondly, the apex court created a hierarchy between the “architects” or leaders and the foot soldiers. Those in the former grouping are on a “qualitatively different footing” due to their alleged role in “planning, mobilisation and strategic direction” of the riots, a distinction that the court cited to decline bail to Khalid and Imam while granting bail to five others.
There is a growing perception that the UAPA, like TADA and POTA, is being used more to suppress legitimate dissent than against “real” acts of terror.
The present case relates to the February 2020 riots in northeast Delhi, which happened in the backdrop of spirited protests against CAA-NRC in which the accused were active. Bringing dissent within the scope of a draconian Act does not augur well for a democracy.
The literal or pro-State interpretation of UAPA, even unwittingly, would go against the right to dissent.
The blurring of the lines between overt terrorist violence and other forms of protest can result in branding activists as terrorists and making them vulnerable to State repression.
Devoid of the larger context, the literal application of the law would embolden the State while undermining the democratic rights of the people.