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

Delivering a judgment defining the contours of the otherwise "vague" Section 15 of the Unlawful Activities (Prevention) Act, 1967, (UAPA) a division bench of the Delhi High Court today laid down some important principles upon the imposition of Section 15, 17 & 18 of the Act. 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by the Amendment of 2004, on the heels of the Parliament repealing POTA in the year 2004 and TADA having already been repealed in 1995, the court said, "the phrase 'terrorist act' must get its colour and flavour from the problem of terrorism as was earlier addressed by the Parliament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 ...

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

Shreya Agarwal

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