Context: Delhi High Court declined to grant bail to Umar Khalid, Sharjeel Imam, Gulfisha Fatima, and seven others charged as key conspirators of the February 2020 Delhi riots saying the riots were a “premeditated, well-orchestrated conspiracy”.
Relevance of the Topic: Mains: UAPA 1967: Provisions and related issues.
The accused have been charged under various provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA), including Section 16 which prescribes the death penalty for committing Terrorist Act.
What is Unlawful Activities (Prevention) Act 1967?
- UAPA was enacted to give the state powers to deal with activities that threaten the sovereignty and integrity of India.
- Initially, it targeted unlawful associations, but successive amendments expanded it into India’s principal anti-terror law.
- Amendments in 2004, 2008, 2012, and 2019 broadened its scope allowing the central government to designate not just organisations but also individuals as terrorists.
Key Provisions of UAPA:
- Definition of Terrorist Act (Section 15): Covered acts intended to threaten India’s unity, integrity, security, or sovereignty, or to strike terror in people. Means can include bombs, explosives, firearms, or any other means.
- Punishments (Section 16): Death penalty or life imprisonment for terrorist acts causing death.
- Unlawful Activities: Criminalises acts supporting secession, cession of Indian territory, or disrupting sovereignty.
- Designation of Terrorists (2019 amendment): Individuals can be listed as terrorists without judicial process, based on executive decision.
- Bail Provisions: Bail is extremely restrictive. Bail cannot be granted if the court finds reasonable grounds to believe accusations are prima facie true (effectively reverses the presumption of innocence).
- Extended Detention: Police can seek 180 days of detention without filing a charge sheet (compared to 60-90 days under ordinary criminal law).
Delhi Riots Case:
- In February 2020, large-scale communal violence broke out in North-east Delhi during protests against the Citizenship Amendment Act (CAA).
- The violence resulted in the death of 54 people and damage to more than 1500 properties.
- The Delhi Police alleged that the riots were not spontaneous but a “premeditated, well-orchestrated conspiracy” involving activists and student leaders.
- Based on this, several persons including Umar Khalid, Sharjeel Imam were charged under the Unlawful Activities (Prevention) Act (UAPA), 1967, apart from provisions of the IPC.
- The prosecution argued that conspiracies were hatched through WhatsApp groups, secret meetings, and mobilisation of protest sites, including calls for a “chakka jam”, which allegedly escalated into riots.
Why Bail Was Denied in the Delhi Riots Case?
- The court applied Section 43D(5) of UAPA, which bars bail if accusations appear prima facie true.
- Testimonies of protected witnesses, who claimed that the accused discussed escalation of violence and setting Delhi on fire, were presumed true at this stage. Their credibility cannot be tested during bail.
- The court emphasised that bail proceedings cannot turn into a detailed evaluation of evidence. Explanations offered by the accused could not be weighed against prosecution material at this stage.
- The alleged plan to organise a chakka jam was treated as falling under the broad phrase “any other means” in Section 15, thereby qualifying as a terrorist act.
- Although the accused have spent over five years in jail, the court held that delay alone cannot justify bail, and that an expedited trial conducted in undue haste may compromise fairness and due process.
Issues and Criticism of UAPA:
- Stringent Bail Conditions: Almost amounts to “bail not jail” being reversed, as courts presume prosecution’s case true.
- Prolonged Incarceration: Accused may remain in jail for years without trial, thus the process itself becomes punishment. E.g., In Delhi riots case, accused have spent 5 years without trial raising concerns of violation of Article 21.
- Overbroad Definition of ‘Terrorist Act’: The phrase “any other means” under Section 15 expands the scope excessively, creating scope for misuse against peaceful protest and dissent. E.g., A chakka jam was classified as terrorism in the Delhi riots case.
- Protected Witness System: Limits cross-examination, raises concerns of fair trial and natural justice.
- Executive Overreach: Power to declare individuals as terrorists without judicial scrutiny undermines separation of powers.
- Low Conviction Rate: NCRB data shows conviction rate under UAPA is below 30%, yet thousands spend years in pre-trial custody.
Broader Democratic Concerns
- UAPA is criticised for blurring the line between legitimate dissent and terrorism.
- It raises questions about Article 21 (right to life and personal liberty) and Article 19 (freedom of speech, assembly, and association).
- In a democracy, misuse of anti-terror laws against protesters risks a chilling effect on free speech.
Way Forward
- Judicial Safeguard : Courts need to evolve stricter standards of evidence scrutiny at bail stage.
- Timely Trials: Fast-track courts must ensure UAPA trials are not indefinitely delayed.
- Narrowing Definitions: Parliament should reconsider vague terms like “any other means” under Section 15.
- Balance between liberty and security: National security is vital, but so is constitutional liberty; laws must not criminalise dissent.
Justice D.Y. Chandrachud observed in K.A. Najeeb case (2021), “Courts cannot remain mute spectators when citizens languish in jails under stringent laws with little hope of trial concluding.” While the state must act against orchestrated violence, prolonged incarceration without trial risks turning the “process into punishment”.
Mains Practice Question:
Q. The Unlawful Activities (Prevention) Act, 1967 has been criticised for reversing the principle of ‘bail not jail’. Critically analyse in the context of recent bail rulings in the Delhi riots case.