2 May 2023 8:09 AM GMT
The Supreme Court on Tuesday dismissed the special petition filed by the Delhi Police challenging the bail granted by the Delhi High Court to student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha in the Delhi riots larger conspiracy case.Noting that that the accused have been enlarged on bail for nearly two years, the bench comprising Justice Sanjay Kishan Kaul and...
The Supreme Court on Tuesday dismissed the special petition filed by the Delhi Police challenging the bail granted by the Delhi High Court to student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha in the Delhi riots larger conspiracy case.
Noting that that the accused have been enlarged on bail for nearly two years, the bench comprising Justice Sanjay Kishan Kaul and Justice Ahsanuddin Amanullah noted in the order, "We find no reason to keep this matter alive".
The bench also clarified in the order that it has not gone into the correctness of the interpretation given by the Delhi High Court to the provisions of the Unlawful Activities (Prevention) Act while granting bail to the accused.
"We have not gone into the legal position with respect of the matter one way or the other", the bench stated.
Solicitor General of India Tushar Mehta, appearing for the Delhi Police, made a strong persuasion before the bench to specifically clarify that the High Court's order should not be treated as a precedent. Justice Kaul replied that the bench has already noted in the order that on June 18, 2021, while issuing notice in the Delhi Police's petition, the then bench had stated that the order should not be used as a precedent. However, the SG pleaded that the order should make a more clear and specific statement that to that effect.
Justice Kaul replied that the order already has observations to that effect. The order dictated by the bench is as follows :
"The impugned order is an extremely elaborate order on bail interpreting provisions of UAPA Act. In our view the only issue to be examined was if in the factual scenario, accused is to be granted bail or not. While issuing notice we observed that the impugned judgment shall not be treated as a precedent. The idea was to protect the State against the use of the judgment to enunciate the law in a bail matter. The accused have been enlarged on bail for 2 years.We find no reason to keep this matter alive. One of the co-accused filed application ....submitting that our observation was coming in way of seeking bail on parity. If the co-accused is entitled to a plea of parity, that is for him to make and for the court to consider...We have not gone into the legal position with respect of the matter one way or the other".
The SG stated that the last sentence in the order is capable of an interpretation that the Supreme Court has left the issue regarding correctness of the Delhi High Court's interpretation of UAPA open-ended.
"The last sentence that your lordship have not tested the correctness again opens it, which lordships never intended", SG said. Justice Kaul however repeated that the order is very clear and further clarifications are not necessary. Saying that the Delhi High Court's judgment virtually declared the UAPA to be unconstitutional, SG again advanced the request to specifically clarify that the HC order should not be treated as a precedent. Justice Kaul however stuck to the stand that the order takes care of the apprehension of the State; however, the judge added that he will check the order once again before uploading.
During the short hearing of the matter, Justice Kaul also expressed disapproval of length deliberations in bail orders. When the matter was taken, an adjournment request was made by a counsel appearing on behalf of the Delhi Police. However, the bench refused to grant adjournment, noting that the matter was adjourned on many earlier occasions. "We note that once again for the nth time a request for adjournment was made", the bench said. Later, the Solicitor General joined the proceedings.
In an earlier order passed in January this year, the bench had recorded its unhappiness at adjournment requests being made citing the unavailability of the Solicitor General.
The Delhi High Court in its judgments dated 15th June 2021 found that offences under the Unlawful Activities Prevention Act (UAPA) were prima facie not made out against student leaders Asif Iqbal Tanha, Natasha Narwal, and Devangana Kalita in the Delhi riots conspiracy case. Going by the allegations in the chargesheet, the accused were only leading protests, stated the division bench comprising Justices Siddharth Mridul and Anup Bhambhani. The High Court said that there was no specific or particularized allegations against the accused relating to terrorist activities.
The High Court in its judgment also interpreted UAPA provisions and held that "the right to protest is not outlawed and cannot be termed as a 'terrorist act' within the meaning of the UAPA". Observing that there was a degree of vagueness in Section 15 of the UAPA, which defines "terrorist acts", the bench observed that UAPA provisions should not be invoked to deal with ordinary law and order problems.
Noting that phrase 'terrorist act' has been defined in a very wide and detailed manner within S. 15, the HC bench opined that the 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".
The High Court bench had also made strong observations that the State was using penal laws to suppress dissent.
"We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred", the bench observing, while cautioning, "If this mindset gains traction, it would be a sad day for democracy."
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