The Delhi High Court’s orders granting bail to Iqbal Tanha, a Jamia Milia student, and Devangana Kalita and Natasha Narwal, JNU students and activists of Pinjra Tod, which is a protest group, and the observations the court made are an indictment of Delhi Police and the political establishment from where it takes its orders. They should also serve as guidelines for all governments and the police forces that violate citizens’ rights and arrest critics, dissenters and protesters on the flimsiest grounds and charge them under draconian laws. All three activists have been in jail for over a year and face charges under the Unlawful Activities Prevention Act (UAPA) in connection with the 2020 February riots in north-east Delhi and the anti-CAA protests. The court, in its orders, has again underlined some fundamental principles of a constitutional democracy that are increasingly being violated by governments.
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The court found that there was no reason to deny bail to the three because it could not be apprehended that they would tamper with evidence or flee the country. But more importantly, the court said that the charges were themselves prima facie weak and unsustainable. This is a welcome rights-focussed interpretation of the UAPA’s stringent bail provision and may benefit many others charged under the law. There could not have been a stronger indictment of the government and police than when the court said that “…it seems that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred.” It also said that there is a “complete lack of any specific, particularised, factual allegations” and that “mere use of alarming and hyperbolic verbiage in the charge-sheet will not convince us otherwise.” The court rightly cautioned that “foisting extremely grave and serious penal provisions…frivolously upon people would undermine the intent and purpose of Parliament in enacting a law.”
There are several judgements of the Supreme Court and High Courts that affirm these principles and tell the police not to rob citizens of their basic rights. These are directed at the political establishments also as the police act on their cue. But such arrests continue, and protesters and activists continue to be dubbed traitors and anti-nationals. The latest case is that of Lakshadweep’s Aisha Sultana, who faces sedition charges for criticising the Administrator of the Union Territory. The distinctions between protests and terrorism and security of the State and public order are important. As the court pointed out, the State has blurred such distinctions, and if such blurring gains traction, democracy will be in peril. It is not the protests but the use of the sledgehammer against them that will harm the country.