Protesters are not terrorists

Delhi High Court raises the bar on UAPA application

The three Delhi High Court orders granting bail to three student activists mark a critical turning point in the application of the Unlawful Activities (Prevention) Act (UAPA). By stipulating a stricter standard for defining acts of terrorism, the high court has indirectly upheld the right to protest guaranteed under Article 19 of the Constitution and prevent the escalating misuse of this 53-year-old Act to incarcerate citizens who challenge the government’s policies. By the Ministry of Home Affairs’ own data, 2019 saw a 72 per cent jump in arrests under the UAPA over 2015. It is no coincidence that 2019 was the year Jammu & Kashmir’s special status was altered and the Citizenship Amendment Act (CAA) was passed in Parliament, sparking countrywide protests.

The three students had participated in anti-CAA protests, which had caused some main roads to be blocked in Delhi. That is a long way from the Delhi Police’s accusations that they provoked the communal riots that broke out in north Delhi in February last year. By the same yardstick it is unclear why Kapil Mishra of the BJP was not arrested under the same law since his incendiary statements a day before the riots escalated were, at the very least, a clear incitement to violence. An authoritarian regime is likely to view the UAPA as a more effective way of silencing critics than sedition laws because obtaining bail under this Act is extremely difficult; in an inversion of settled jurisprudence, it requires the accused to demonstrate that the prosecution case is not, prima facie, true. So far, the few bail applications granted in UAPA cases have usually been on grounds of age, illness, or length of trial.

The Delhi High Court’s rulings are crucial because they addressed the critical weaknesses in state agencies’ application of the UAPA laws and for defining an act as “terrorist”. The rulings stated, among other things, 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”. In other words, shouting slogans against government policy and blocking roads, which is what these students had done, cannot be construed as a terrorist activity. This standard effectively removes a plank on which the state builds its case against dissenters, and it is no surprise that the Delhi Police have dissembled almost comically. First, it said it required time to verify the addresses of the three, an argument that has been summarily overruled by the sessions court which ordered their release on Thursday.

The police have now submitted a special leave petition in the Supreme Court, appealing against the high court’s ruling on grounds that the judges did not consider the evidence and “the corroborations that revealed a sinister plot of mass-scale riots being hatched by the accused”. It is worth noting that most of this “evidence” comes from the police or protected witnesses, another standard tactic. Taken together with the Supreme Court’s recent pronouncement on sedition laws, the Delhi High Court’s ruling raises the question of whether these laws should be opened for constitutional review. Certainly, the extreme manner in which they have been applied on Indian citizens who disagree with the state is out of sync with a government that recently sought to burnish its democratic credentials in that most prominent international forum of a G7 meeting.