Delhi riots: 3 student activists get bail

#GS2 Governance, law and order


News info:

The Delhi supreme court granted bail to 3 students of Nehru University and Jamia Millia Islamia arrested under the Unlawful Activities (Prevention) Act (UAPA) in reference to the northeast Delhi riots in 2020.

Explanation:

  • The court criticized the Delhi Police for casually invoking provisions of UAPA against the three accused noting that the road between the constitutionally guaranteed “right to protest” and “terrorist activity” had been blurred.
  • The three accused students are reported to be protesting against the enactment of the recent Citizenship Amendment Act (CAA) that racked discussion and criticism across the nation.
  • The court remarked that, in spite of the very fact that the definition of ‘terrorist act’ in UAPA is wide and somewhat vague, the phrase ‘terrorist act’ can't be permitted to be applied to criminal acts in a general sense, that fall squarely within the definition of conventional offenses.
  • The court cautioned that imposing extremely grave and high penal provisions engrafted in sections 15, 17, and 18 of the UAPA upon people would undermine the intent and purpose of the law.

UAPA’s origin:

  • The ‘terrorist act’, including conspiracy and act preparatory to the commission of terrorism, were brought within the purview of UAPA by an amendment made in 2004 when the Prevention of Terrorism Act (POTA) was repealed.
  • The precursor of POTA, the Terrorist & Disruptive Activities (Prevention) Act (TADA) was evidently repealed in 1995.

Unlawful Activities (Prevention) Amendment Act

The UAPA – an enhancement on the TADA (Terrorist and Disruptive Activities (Prevention) Act), which was allowed to lapse in 1995 and the Prevention of Terrorism Act (POTA) was repealed in 2004 — was originally passed in 1967 under the then Congress government led by former Prime Minister Indira Gandhi. Eventually, amendments were brought in under the successive United Progressive Alliance (UPA) governments in 2004, 2008, and 2013.

Currently, the National Investigation Agency (NIA) is functioning as the Central Counter-Terrorism Law Enforcement Agency in India established under NIA Act 2008.

Concerns/Criticism:

  • The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.  
  • The opposition voiced concerns about the amendments, saying the provisions were against the federal structure of the country enshrined in the Constitution of India.  
  • There was no pre-legislative consultation.
  • Designating an individual as a terrorist raises serious constitutional questions and has the potential for misuse.  
  • An individual cannot be called a ‘terrorist’ prior to conviction in a court of law, It subverts the principle of “innocent until proven guilty. A wrongful designation will cause irreparable damage to a person’s reputation, career, and livelihood.  
  • While none will question the need for stringent laws that show ‘zero tolerance towards terrorism, the government should be mindful of its obligations to preserve fundamental rights while enacting legislation on the subject.

Defining ‘terrorism’:

To understand the concept and construction of ‘terrorism‘, the supreme court mentioned various Supreme Court (SC) judgments where the difficulty has already been addressed.

In the case of Hitendra Vishnu Thakur versus the State of Maharashtra, The honorable SC said:

  • “A ‘terrorist’ activity doesn't merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity must be such it travels beyond the capacity of the standard enforcement agencies to tackle it under the standard penal law.
  • “Every terrorist could also be a criminal but every criminal can't be given the label of a ‘terrorist’ only to line in motion the more stringent provisions of TADA.”

Source: The Hindu

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