The TLDR: Yesterday, three activists—accused of inciting violence in Delhi last February—were finally granted bail. It may not seem like much but the High Court ruling significantly raised the bar for the use of terror laws—and made it clear that these cannot be deployed to squash democratic dissent. 

Researched by: Sara Varghese and Vagda Galhotra

A quick timeline

These cases related to the violence that broke out in Delhi in the midst of the anti-CAA protests. Since it’s easy to lose track of the events that led us to this place, here’s a quick recap:

• On December 11, 2019, the government passed the Citizenship Amendment Act—which offered citizenship to Hindus, Sikhs, Parsis, Jains and Christians from neighbouring countries. The notable exception: Muslims. While the government claimed there was no discrimination intended, the law clearly marked Muslims as a ‘special category’ of citizens, excluded from the rights of others.
• By mid-December, protests against the CAA had spread across the country—the most notable location being Shaheen Bagh. These were peaceful demonstrations where protesters staged extended sit-ins by blocking roads and neighbourhoods.
• Soon after, the police stormed JNU, Jamia Millia and Aligarh Muslim University campuses on various grounds—which in turn intensified the protests.
• Hindutva activists and politicians (See: Anurag Thakur and Parvesh Verma) were also targeting these demonstrations—threatening violence.
• In February, the confrontation between anti-CAA protesters and Hindutva groups resulted in widespread violence in North Delhi—triggered most likely by this inflammatory speech made by BJP leader Kapil Mishra. (It is among four such key clips here). 
• Since the lockdown in late March, the Delhi police have rounded up protesters—who are accused of deliberately conspiring to incite the riots. 
• So far, 1,829 people have been arrested in 755 cases. Chargesheets in 353 cases have been filed in the riots related cases.

An introduction to FIR 59

The three activists released on bail yesterday are Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita. And all three were booked in multiple cases, and had received bail. But they continued to languish in jail since they were named in an infamous First Information Report dubbed FIR 59. But to understand how this particular FIR was used, we need to first quickly explain the Unlawful Activities Prevention Act (UAPA).

A quick intro to UAPA: Here’s how this law works:

• UAPA allows any person who is charged with “unlawful activities” to be declared a “terrorist”—and arrested under those charges. 
• Yes, the definition of what is unlawful or who is a terrorist is terrifyingly vague. 
• And thanks to a 2019 Supreme Court ruling, authorities can simply declare that they have evidence to make a prima facie case. Trial courts typically have limited authority to challenge that evidence. 
• Evidence can be withheld for ‘national security’ purposes at the time of the arrest. 
• And the person can be held for extended periods of time without a proper charge sheet or bail.
• A total of 1,226 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015.

Big point to note: The low bar for evidence is also why UAPA cases are thrown out once they are brought to trial. But by then, the person has spent months on end—punished for a non-existent crime.

About that FIR 59: Here’s a timeline of how this complaint was turned into a monstrous net to sweep up protesters and throw them into jail—without the possibility of bail. 

• On March 6—ten days after Delhi violence—a sub-Inspector of the Narcotics Cell of the Delhi Police filed a complaint that would be dubbed First Information Report 59/2020.
• According to the FIR, the sub-Inspector claimed that he had received information that revealed a conspiracy to incite the violence—which was spearheaded by a former Jawaharlal Nehru University student (JNU) Umar Khalid (we explained Khalid’s case here).
• At first, the charges as per FIR 59 were rioting, being armed with a deadly weapon, unlawful assembly, along with criminal conspiracy. All these are bailable offenses under the Indian Penal Code.
• As a result, the first three men arrested—who were members of an Islamist organisation Popular Front of India—were let out on bail. 
• In response, the Delhi police slapped additional charges onto the FIR—increasing it from four to 18. It now included 26 sections of the Indian Penal Code, including murder, promoting communal enmity, and sedition—and invoked four sections of the dreaded UAPA.
• This FIR was then used to charge at least 17 people including Delhi politicians Tahir Hussain and Ishrat Jahan, JNU student Sharjeel Imam, and activists Umar Khalid and Khalid Saifi, besides others.
• Point to note: FIR 59 is only one among the 700 filed by the police in connection with the Delhi violence.

A tale of three arrests

Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita were arrested in May, 2020. Like many others, they were first booked under other FIRs. But the moment they received bail, they were re-arrested under FIR 59—which included the handy UAPA charges to keep them in prison. 

The alleged crime: Narwal and Kalita are founding members of the feminist collective Pinjra Tod—which was heavily involved in organising the anti-CAA protests. They were first arrested for organising a protest near the Jaffrabad Metro Station. The police claim they “were part of WhatsApp groups and aware of the acts of every conspirator. Therefore, they were equally liable for the violence.” As for Tanha, “the police said statements of protected witnesses established his links to the riots and that he was part of the premeditated conspiracy behind the incidents.”

Justification for UAPA: In its argument to the High Court, the Delhi police put forward an alarmingly broad interpretation of the law:

"The Delhi Police argued that the terror clause in UAPA can be invoked, not just for the 'intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity', or 'the intent to strike terror but the likelihood to strike terror, not just the use of firearms' but also for 'causing or likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property'.” (emphases added)

The High Court ruling

As we noted before, in order to deny someone bail in a UAPA case, the police only has to establish a prima facie (first impression) case. And the courts need not assess whether the offered evidence is admissible or even true. In rejecting the bail of the three accused, the trial courts accepted the police’s prima facie claim. The High Court did not. It instead challenged the police’s definition of a terrorist act:

“…the phrase ‘terrorist act’ has been defined in a very wide and detailed manner within Section 15 itself, in our opinion, the court must be careful in employing the definitional words and phrases used in Section 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.”

For example, in Narwal’s case, the Court noted:

“Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stockpile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests. But we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA.”

Hence, it ruled that UAPA was not applicable:

“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.”

Big point to note: The Court also issued a strong warning against using UAPA to criminalise dissent:

“We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.”

And the judges made clear that “the more stringent a penal provision, the more strictly it must be construed.”

The bottomline: The Delhi police plans to challenge the ruling in the Supreme Court. But the judgement offers hope to the many others arrested under FIR 59—who are still languishing in jail. And we hope the higher court’s interpretation will send a strong signal to trial courts which allow the police to slap UAPA charges on whoever they please.

Reading list

Indian Express and The Telegraph summarise the ruling, while LiveLaw has the most details. You can read all three bail orders over at The Wire. Huffington Post has the best reporting on FIR 59, while Scroll lays out the Delhi riots conspiracy case. Also check out profiles of Tanha, Narwal and Kalita. Caravan has letters written by Narwal and Kalita from Tihar jail. Check out Quint if you want to know more about Pinjra Tod.