Can Speech Be Qualified As A Terrorist Act?What Supreme Court's Expansive Definition Of S.15 UAPA Means

The judgment pronounced by a bench comprising Justice Aravind Kumar and Justice NV Anjaria gave an expansive interpretation of Section 15(terrorist act) of the Unlawful Activities (Prevention) Act, 1967, to hold that plans to organise chakka jams could amount to "terrorist acts" as they are likely to disrupt essential supplies and services to the community - which is covered under the definition of "terrrorist act" as per Section 15(c). The bench held that a "terrorist act" need not be carried out through conventional violence and can include conspiracy to paralyse essential supplies.

This article critiques the expansive definition of Section 15, which could potentially encompass any form of protest/speech if there is a 'likelihood' that it is disruptive to 'civic life and societal functioning,' without proving the 'nexus' between the speech/protest and any violence. 

The interpretation has to be understood in the backdrop of anti-terror legislation, which is overwhelmingly prosecution-centric as the prosecution's narrative(which mostly relies on protected witnesses and electronic evidence like WhatsApp Chats etc both of which can't be verified or accessed at this stage) has to be taken at face value(as held in NIA v. Zahoor Ahmad Shah Watali) in light of Section 43D(5) embargo, and defence can't be argued at the bail stage.

Section 15 and its ingredients 

Section 15 defines what constitutes a terrorist act as comprising two ingredients:

1. Any act with the intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India; 

UAPA does not define what terrorism actually means primarily for the reason that there can't be an exclusive definition.  As per the framework, act/s could be achieved by using conventional forms of violence such as bombs, dynamite, or other explosive substances, firearms, poisonous gases, etc or “any other means” of whatever nature. The recent Red Fort attack is an example of conventional use of violence.

2. The second ingredient is that the act must be of such a nature that it causes or is likely to cause death, injury, or loss/damage/destruction of property, or disruption of any supplies or essential services to the life or damage to the monetary stability of India.

The part considered by the Court is "disruption of any supplies or essential services to the life", which is covered under Section 15(c).

Therefore, what the Court has accepted is that: “any other means by whatever nature” includes the alleged “organised, sustained and conspiratorial” meetings, inflammatory speeches, WhatsApp groups, mobilisation of crowd which resultantly are calls for chakka jam(road blockade) to construe that conspiracy to commit 'terrorist act' has been committed through “disruption of any supplies or services essential to the life of the community in India” which includes conduct that “destabilises civic life or societal functioning”, even in the absence physical violence.

The Delhi police cited Imam's provocative speeches, where he could be heard making statements such as chakka-jams must be held in all Indian cities, Muslims must unite to cut off the 'chicken neck' area connecting India to Assam and cut-off north-east from the mainland, must disrupt supplies of essentials to Delhi, must paralyse the Government, and that the Courts cannot be trusted. The Court has emphasised much about Umar Khalid's speech at Jamia, where he is stated to have explained the difference between dharna and chakka jam, to sustain that this was not an ordinary protest.

We proceed with the premise that the speeches were objectionable and that the intention was to cause widespread disruptions through mass protests. But can an aggravated form of speech and protest be conflated with an act of terrorism?

Speeches calling for chakka jam, mobilisation and disruption of essential supplies: Law and order>public order>national security

In Ram Manohar Lohia (Dr) versus State of Bihar (1966), the Supreme Court divided violence into those concerning the law and order, public order and security of the State. It explained that law and order is the superset, and as the threshold of violence increases, it becomes an issue of public order and then finally, as the one affecting the State security.

The Court explained: “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 the security of the 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 the security of the State."

In this context, we understand where provocative speeches and chakka jam would fall. The right to protest is a fundamental right under Article 19 of the Indian Constitution. Protest can emanate from speeches, peaceful assembly, and associations/unions, and the State has a right to impose reasonable restrictions under Article 19(2).

Chakka jam as a form of protest has existed since time immemorial. It is a form of protest where protesters take to the streets to block roads, highways, and railways. Although necessarily disruptive and may be a more assertive form of collective action, it does not inherently involve a call for violence.

India has a rich history of how this form of protest has been adopted by various segments of working-class society, such as farmers and students, and trade unions as a mechanism to raise demands for unequal working conditions, wages or concerns against the government of the day. In 1974, George Fernandes had led the 'All India Railway Strike', which paralysed the railways for 20 odd days to demand better working conditions, wages and rights for railway workers. There was no single major railway station that was not shut down or severely affected.

In 2021, when the Farmers' Bills were enacted, what the country witnessed for months at the Punjab-Haryana border was nothing but a chakka jam by farmers, demanding that the Bills be repealed. What the Supreme Court then suggested was for the governments to find an amicable solution. Even the Government had clarified that neither the offence of sedition nor UAPA has been invoked against protesting farmers.

Definition of terrorism and the requirement of a psychological element

While upholding the constitutionality of the Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA), the Supreme Court in Kartar Singh v State of Punjab(1994) had explained that terrorist acts, as defined under TADA, can't be classified as mere disturbance of public order. It is rather a grave emergent situation created either by external forces or anti-nationals, throwing a challenge to the very existence and sovereignty of the country in its democratic policy.

In Hitendra Vishnu Thakur & Ors vs. State of Maharashtra & Ors(1994), the Supreme Court said that the extent and reach of a terrorist activity under TADA must travel beyond the effect of an ordinary crime. It must not arise merely by causing disturbance of law and order or even public order.

It said: “Even though the crime committed by a 'terrorist' and an ordinary criminal would be overlapping to an extent but then 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”.

Clearly, the Court acknowledged that ordinary criminal and terrorist acts can overlap to a certain extent, but the legislature intends that if it can be dealt with within the realms of ordinary criminal law, then anti-terror legislation must not be invoked.

In Hitendra, the Supreme Court had said that since the word 'terrorism' is not defined in TADA and nor is it possible to give it a precise definition, it may be possible to describe it as the use of violence when its most important result is not merely physical and mental damage of the victim but the “prolonged psychological effect” that it produces or has the potential to produce. Again, in People's Union For Civil Liberties & Anr vs Union Of India(2003), the Supreme Court had made a distinction that what makes terrorism different from the political offences is the psychological element involved in the former.

Aggravated form of public order 

In Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra & Ors(2010), the Supreme Court was dealing with the constitutionality of MCOCA. It explained the difference between 'public order' and 'security of the State' by relying on a passage from Stephen's Criminal Law of England which says: “Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.”

The judgment relied upon Romesh Thappar v. State of Madras(1950) in which the Supreme Court has said that "public order” signifies a state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established.

Using this, the Court in Latifur said that though all these offences involve disturbances of public tranquillity and are in theory, offences against public order, the difference between them is only one of degree. "The Constitution thus requires a line, perhaps only a rough line, to be drawn between the fields of public order or tranquillity and those serious and aggravated forms of public disorder which are calculated to endanger the security of the State."

Chilling effect

In Shreya Singhal v UOI(2014), the Supreme Court struck down Section 66A of the Information Technology Act, 2000, which made it a criminal offence to send any information online that is "grossly offensive/menacing/causes annoyance/obstruction/hatred" etc. The Court held that it criminalised free speech and dissent due to the overbreadth and vagueness, and created a chilling effect. It said that the manner in which Section 66A has been cast would virtually include any dissenting opinion or subject.

By vaguely interpreting "any other means" under Section 15(1), the Court exactly does what it is not supposed to do. It leaves the term open-ended, potentially leading to self-censorship in terms of participating or organising protests because, in the absence of a definite meaning, citizens will have no idea whether what they are doing falls within the realm of a terrorist act or not.

In A.K. Roy vs. Union of India and Ors(1982), the Supreme Court was dealing with the provisions of the National Security Act which was challenged on the grounds of vagueness. It was argued that the legislature says that persons can be detained if they are acting in any manner prejudicial to the "maintenance of supplies and services essential to the community" but does not define what this expression means or includes.

Partly accepting this argument, the Supreme Court said: "What we have said above in regard to the expressions 'defence of India', 'security of India', 'security of the State' and 'relations of India with foreign powers' cannot apply to the expression “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” which occurs in Section 3(2) of the Act. Which supplies and services are essential to the community can easily be defined by the legislature and indeed, legislations which regulate the prices and possession of essential commodities either enumerate those commodities or confer upon the appropriate Government the power to do so. In the absence of a definition of 'supplies and services essential to the community', the detaining authority will be free to extend the application of this clause of sub-section (2) to any commodities or services the maintenance of supply of which, according to him, is essential to the community."

It directed that no person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, through an order, law or notification, it is published in advance what supplies and services are made known to the public.

This expansive definition interpreted by the Supreme Court is a problematic precedent and adds to the growing number of jurisprudential cases where anti-terror laws are being increasingly invoked to stifle dissent in modern times.