Protecting the right to dissent from UAPA

Synopsis: The Delhi High Court granted bail to young student and activists Natasha Narwal, Devangana Kalita, Asif Tanha. The present judgement of Delhi HC will go a long way in strengthening the most important pillar of our democracy – right to protest and dissent.

Introduction

• The three young students and activists were imprisoned for over a year in connection with the riots in North-east Delhi, and the anti-CAA-NRC protests.
• They were arrested under some serious charges including those under UAPA (Unlawful Activities Prevention Act).
• Delhi HC granted them bail and explicitly stated that the foundations of our nation is unlikely to be shaken by a protest, howsoever well-organized by a tribe of college students.
• Those arrested under UAPA generally languish in jail for years without trial. If this judgment is upheld in the Supreme Court (Delhi Police has gone to the Supreme Court on appeal against the verdict) then it’ll help other dissenters arrested under UAPA without sufficient evidence.

What are the problems faced by courts in granting bail under UAPA?

Under UAPA, the accused does not have the option of anticipatory bail. It presumes the accused guilty solely on the basis of the evidence collected. Courts usually face these two problems:

• Legal bar on granting bail: Firstly, Under Section 43D(5) of UAPA, there is a legal bar on granting bail if the court is of the opinion that there are reasonable grounds to believe that the accusation against those held is prima facie true.
• No detailed examination of evidence at bail-stage: Secondly, the burden to demonstrate to the court that the accusation is untrue lies with the accused only. This has been made more problematic due to a 2019 Supreme Court judgment. This judgment bars a detailed analysis of the evidence at the bail stage and rules that bail can be denied on “the broad probabilities” of the case.

How Delhi HC got around these two problems?

The High Court ruled that

• Available evidence can be examined: The bail court can look at the available evidence to satisfy itself about the prima facie truth of the case. In other words, there is no statutory invincibility to the prosecution case merely because the UAPA has been invoked

Other important remarks by the court

Delhi HC remarked that,

• Riots are matters concerning public order and not the security of the state. The court observed that the state, in its anxiety to suppress dissent, has blurred the line between the constitutionally guaranteed right to protest and “terrorist activity”.

Conclusion

Delhi HC judgment makes a clear distinction between those accused of offenses against the country’s integrity and security on the one hand, and protesters or dissenters arrested unjustifiably under the criteria of terrorism. This distinction shall help secure citizens two of the most sacred rights in a democracy: the right to protest and the right to dissent.

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