'HC Judgment Waters Down UAPA, Dilutes It, Reads It Down & Says That Otherwise It Would Not Pass Muster Of Parliament': SG Tushar Mehta Tells SC -Courtroom Exchange

In the challenge to the grant of bail by the Delhi High Court to 3 anti-CAA student activists Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita, Solicitor General Tushar Mehta vehemently prayed for a stay of the impugned judgment except the operative part granting bail, urging that it has the effect of watering down and reading down the UAPA."The High Court says that the intent and purpose of introducing the UAPA and amending it to bring terrorist activities within its scope 'was and could have only been those acts which have a profound impact on defence of India; nothing more and nothing less'! The HC says that the UAPA could have been enacted by Parliament since Entry 1 and Entry 93 in List 1 can bring it within the competence of the Parliament! Let me tell you what Entry 1 and 93 are- they relate to defence of India and preparation for defence in times of war! So except in these circumstances, if the UAPA is used, the Act is unconstitutional?! ", the SG told the bench of Justices Hemant Gupta and V. Ramasubramananian."The HC says that it was neither the intent nor the purpose of enacting UAPA that other offences of usual or ordinary kind, however grave in nature and extent, should also be covered by the UAPA, since such conventional matters would fall in Entry 1 of List II, which is public order, or Entry 1 of List III, which is criminal law? So if I kill someone in a murder attempt, and if I can be booked under 302, UAPA would not apply even if I am terrorist?! They have watered down the Act and read it down and they say that otherwise it would not pass the muster of Parliament! The HC basically says that for the constitutionality of provisions of sections 15, 16 and 18, it must be taken that Parliament acted within its legislative competence?!", pressed the SG.The following is the courtroom exchange as it transpired:At the outset, Justice Gupta had commented that impugned judgments, which were delivered on bail applications, run into 100 pages."And I can venture to say that by this judgment, the entire UAPA Act has been turned on its head along with the Constitution! I know the seriousness of what I am saying!", began SG Tushar Mehta."The issue is important and would have pan-India ramifications. We would like to issue notice and hear the parties and then decide the matter for the good of the entire country", said Justice Gupta.The SG prayed that in the meantime, it is his "earnest request" that the order be stayed."There are twofold reasons for this- the HC has in its findings recorded virtually an acquittal for the accused. The findings are that the UAPA Act, unless read in a particular manner, in deference to specific Entries in the specified Lists, is unconstitutional! Others are already moving for bail relying on this and the only thing that now trial court will be technically required to do is replace the judgement with this judgement and entertain a discharge application!", he pressed.Continuing, "with profound respect", the SG advanced, "This is something where an incident takes place because the President of US is visiting the country! These are statements of the witnesses- 'Let us create a worldwide campaign that a particular community is...(unclear)'"As the bench showed an inclination to hear the response of Senior Advocate Kapil Sibal, for the respondents, ASG Aman Lekhi sought to argue, "The judgement imputes an ambiguity in section 15 (of the UAPA) which was not argued! The judgment substitutes it with the test which the court has created as to what is essentially a terrorist act! 15 has to apply as it stands!""It will require examination by the Supreme Court! That is why we are issuing notice!", repeated Justice Gupta.'From which date does the right to protect include the right to kill people and hurl bombs?'- SG"One fact must be kept in mind. These are all co-conspirators playing different roles assigned to them! 53 persons died, of which many were police officers! More than 400 people were injured! (Mr. Lekhi clarified that the number is 700). And the HC says 'but eventually the riots were controlled and therefore, the UAPA would not apply'?! Meaning thereby that if I put a bomb somewhere and the bomb disposal squad diffuses the bomb, then it reduces the intensity of my offence! I am just urging Your Lordships' conscience to please stay this judgement!"The SG proceeds to indicate certain paragraphs of the impugned judgement, as the bench repeats its wish to "first find out what is Mr Sibal's response".Mr. Sibal says that he agrees with the bench's first reaction that the Court must consider the ramifications and interpretations of the UAPA- "There is no doubt about that and I will certainly support Your Lordships. We need to have a judgement of this court, which will otherwise impact everybody. I am in agreement. But what we are dealing with right now is the bail application. We are looking at the role played..."Justice Gupta reiterated that this is what is concerning the bench,...

'HC Judgment Waters Down UAPA, Dilutes It, Reads It Down & Says That Otherwise It Would Not Pass Muster Of Parliament': SG Tushar Mehta Tells SC -Courtroom Exchange

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