NATASHA NARWAL CASE (DELHI RIOTS BAIL JUDGEMENT) : LESSONS FOR THE GOVERNMENT, THE PROTESTERS AND THE COURT

 

NATASHA NARWAL v. STATE OF DELHI Nct, 15 June 2021 (Bail judgement on Delhi riot)

Anurag deep, Associate Professor, Indian Law Institute, New Delhi 

1. Opening Comments

2. Natasha Narwhal judgement -content and annexure

1. Was the alleged conduct of the accused constitutionality guaranteed? 

2. Screenshots and evidence of Riots

3. Concluding comments 

1. Who is abuser of law: Both (State and Protesters)

2. Wrong use of National security laws : remedies

1. Opening Comments

Since December 2019 a protest against the Citizenship Amendment Act, 2019 emerged in various parts of India. Delhi was the center of it. In Feb 2020 there was a riot in Delhi in which more than 50 persons were killed, including police officers. Government and private properties were damaged on a large scale. This all was committed when the US President Donald Trump was in India. Besides FIR under IPC, UAPA 1967 (a counter terror legislation) was also imposed on various accused. The accused include various students from JNU, Jamia etc. They were arrested in May 2020, after around three months of registration of FIR. The accused applied for bail for accusation under IPC as well as  UAPA 1967. There was all possibilities to get bail under IPC because after a certain period 60/90 days of custody bail has to be granted (default bail). However, under  UAPA 1967 the granting of bail is very difficult because of special provision under section 43D(5) which restricts the power of court. “Jail is the rule and bail is the exception” is the jurisprudence because of strict provision of bail under counter terror laws. Before the time of default bail (the period of custody after which the accused can demand bail as a matter of right) under UAPA (ie 90/180 days) the prosecution submitted the chargesheet in September 2020. After submission of chargesheet the chance of default bail was neutralised. The Court has to exercise discretion based on the evidences placed in the chrgesheet under law.

It was alleged by the accused that 

1. The government has arrested the protestors because it wanted to suppress dissenting voices against the Citizenship Amendment Act, 2019. The accused were well known hardcore protestors of the Citizenship Amendment Act, 2019. 

2. The government has wrongfully slapped UAPA 1967. The protest was peaceful though it led to violence and many deaths. It could be a case under section 34/ 302/ 120B/ 149/ 107 etc but cannot be a case under counter terror legislation.  

The division bench of the high court of Delhi, (Anup Jairam Bhambhani J. [author] and Siddharth Mridul J.) have accepted the second plea and granted them bail. Regarding first plea the high court has made a couple of remarks on the application of UAPA 1967 which shows 

1. that the functioning of the prosecution department is weak 

2. they are unaware of the philosophy of counter terror legislations 

3. this case may be an illustration of misuse of UAPA 1967 

4. the government is using UAPA 1967 to suppress peaceful dissent. 

Above statements (a) (b) (c) are agreeable. But the fourth statement (d) is difficult to digest if any one gives a glance over the screenshots attached to the judgement. Is there any prima facie evidence under UAPA 1967 -The answer is strong No. 

Is there any prima facie evidence under IPC -The answer is a strong Yes. 

II. Natasha Narwhal judgement -content and annexure 

The judgement may be divided into two parts. First part is the judgement itself. Second part is the documents (screenshots) attached. Both take almost equal space in pages.  The judgement and comment may be discussed as under-

1. The bail judgement deals with the principles of law under UAPA 1967. It has a precedential reference of Hitendra Vishnu Thakur vs. State of Maharashtra (1994) 4 SCC 602 and decisions like Sanjay Dutta case (1994) 5 SCC 410 besides other cases. The high court rightly concluded that a terrorist activity is an abnormal activity. It is distinct from general criminal activities. The State must take note that this difference ought to be the controlling factor when UAPA 1967 is applied. The test is, whether the alleged conduct cannot be dealt with classical criminal law? Is it really necessary to impose the provisions of counter terror legislations?

2. The emphasis on the difference between a criminal conduct and a terrorist conduct reminds me of the case of Ram Manohar Lohia (1966). In this case the constitution bench held that law and order is a big circle. Public order is a smaller circle in that big circle. Security of State is the smallest circle. We may add that the defence of India (challenge to sovereignty and integrity of India) will be more restricted than Security of State. In other words the evidence required for restricting a conduct on the ground of the security of India should be more compelling and convincing. 

C. The judgement explains the scope of the right to protest. The high court rightly pointed out that the protest may be for a right cause or a wrong cause. The protest, “whether it is justified or unjustified” is not relevant.  Every protest, irrespective of its good or bad purposes, needs protection provided it does not breach the constitutional contours of reasonable restrictions. A protest may be noisy, may be disorderly (or likely to be disorderly) or may be violent (or likely to be disorderly)). Penal law runs into motion if the protest has a tendency of violence or disorder. The high court relied on two principles, security vis a vis liberty. The high court concluded that the evidences do not show that security was disturbed to the highest degree and that a provision of counter terror legislation should be imposed because the conduct of the accused has no proximate connection with terrorist activities, or other connected offences. No prima facie case is established as required under the provision of bail [43D(5)] under UAPA 1967.  Therefore, the general law of bail (as under section 439 CrPC) has to be applied and not the special law of UAPA 1967. Based on evidence presented in the chargesheet the high court found that the evidence of incitement of violence is also confusing, what to talk about any offence under UAPA 1967.  

The high court in Natasha Narwal was of the view that the dissenting conduct seemed to be confused with terrorist conduct. As this statement has wide nuances it may be reproduced as under: 

36. We are constrained to express, 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. If this mindset gains traction, it would be a sad day for democracy.

This statement of the Delhi HC has attracted headlines. Many have celebrated it out of context. This gives an impression that the accused were peaceful protestors. They were only engaged in galvanising support against CVV/NRC. This was lawful and protected by the constitution. The impression of the statement by the HC also goes like the actus reus of accused was limited to chakka jam which may be little unlawful but not undemocratic. This needs to be investigated in detail.

Was the alleged conduct of accused constitutionality guaranteed? 

Based on above rationale (that UAPA was not the correct law probably) the high court granted bail to the accused, and rightly so. However, this statement of the court is little generalised and seems to be made out of context. It gives an impression that the accused were exercising their “constitutionally guaranteed right to protest.” While the government failed to apply its mind properly before imposing UAPA 1967, it is not correct to state that the protestors were exercising their constitutionally guaranteed rights which can be established by reading the second part of the judgement.       

The second part of the judgement comprises relevant screenshots from the chargesheet. The screenshots establishes two things 

1. that there is no evidence to proceed under UAPA 1967. Bail is rightly granted. Indeed the charges under UAPA 1967 cannot be framed. Chargesheet under UAPA 1967 will be quashed. It  is reported that the Police are thinking of filing an appeal. It is difficult to state what are the grounds of appeal because the screenshots do not indicate the Police has clinching evidence to establish a prima facie case under UAPA 1967. 

2. there is enough evidence to proceed under IPC. If the prosecution is able to establish the evidence that is presented in the chargesheet, it will lead to conviction of the accused. In appeal the Police may argue in the Supreme court that bail granted for offences under IPC are not well founded. The accused may influence witnesses because the accused are not only influential but can resort to scary/ violent tricks to intimidate the eye witnesses. Unless the Police has some additional evidence, it is not likely that the Supreme court will honour the request of the Police. The chances to get a stay on bail order of the high court are not good.  

Screenshots and evidence of Riots

The screenshots contain the statements of many eye witnesses. They are primary evidence and have strong probative force. If the chargesheet is read, it makes serious allegations. The eyewitness of various connected transactions make statement as under--

1. The accused students (who were granted bail in this case) were a part of a group which was planning a huge protest with the purpose that it would result in riot and violence. Certain persons of the group which they belonged was insisting केवल भाषण से काम नहीं चलेगा। खून बहाना पड़ेगा. लाल मिर्च, अंडे, एसिड बोतल लेकर आओ.(1434) [statement of a witness]. The eyewitness is a person whose job seems to be to make arrangements for tea, chairs etc for the leaders of protesters. [screnshot-2]

2. screen stot-3b --ये चक्का जाम हिन्दुओं की आबादी में करेंगे, जब हिन्दू घिर जाएंगे तो वहां तुरंत पथराव कर देंगे, फिर दंगे भड़क जाएंगे. चिल्ली पाउडर, एसिड, कांच की खाली बोतल, डंडे, पत्थर अभी से जमा  करो ताकि दंगे में काम आ सके.  (1554) [statement of a witness]

3. On 23-24 Jan 2020 a meeting was arranged. It was attended by the accused, (Natasha Narwal and Devangana Kalita). A person (A1) was saying that the protest should ultimately escalate to riot and should result in spilling of bloods of policemen and others. This is the only possible means to bring the government on knees. A1 directed the accused person to induce local women of Seemapuri to keep stockpiling knives, bottles, acid, stones, chilli powder, other dangerous articles to be used in rioting…(screen shot-5); [statement of a witness]

4. Screenshot 7--16/17 फरवरी की रात प्रोटेस्ट साइट पर एक सीक्रेट मीटिंग बुलाई गई, जिसको देवांगना, नताशा ने अटेंड किया. इस मीटिंग में प्रोटेस्ट और दंगों की बात की गई थी जिसपर सब सहमत थे. उसने मेरी मुलाकात देवांगना, नताशा से कराइ. मुझे पता चला कि इन लोगों ने डंडे, पत्थर, और लाल मिर्च इकठा करने की शुरुआत करी. और लोगों से बोलै कि ये सब इकठ्ठा करे. (1964). [statement of a witness]

5. Screenshot 24 - इसी दौरान [मालूम] चला कि नताशा, देवांगना, और पिंजरा तोड़ के अन्य सदस्य २६ जनवरी से घूम घूम कर औरतों को पत्थर, कटीले तारों वाले डंडे, खाली बोतलें, एसिड की बोतलें, लोहे की रोड, लाल मिर्च पाउडर, जमा करने के लिए कह रही हैं.

6. Screenshot 25-26-मैंने ग्रुप में यह भी लिखा कि अगर प्रोटेस्ट पीसफुल है तो नताशा व उनके साथी चिल्ली पावडर क्यों बाँट रहे हैं, इस पर A 2  ने व्हाट्सप्प काल कर धमकी दी कि ग्रुप पर मुहँ तो नहीं खोला, कौम से गद्दारी मत करना वार्ना बचेगा नहीं. [statement of a witness]

7. Screenshot 27 --देवांगना, नताशा मौजूद थे. लोगों को तेजाब इकठा करने को बोला गया. 

8. Screenshot 31 ---समय करीब ७ बजे शाम मैंने आगे बढ़कर मौजपुर मेट्रो स्टेशन पर देखा कि देवांगना, नताशा बुर्के वाली लेडिस को पत्थर, बोतलें, और मिर्च पाउडर के पैकेट बाँट रही हैं, बुर्के वाली लेडिस CAA समर्थकों पर फेंक रही हैं. 

9. Screenshot 36 --उनके साथ ही देवांगना, नताशा नरवाल, जिनके बारे में मुझे पता लगा कि पिंजरा तोड़ नाम की पार्टी से हैं, भी वहां आकर बैठने लगे. इन मीटिंग्स में देश विरोधी नारे और भीड़ को कैसे हिंसक बनाया जाए इसपर चर्चा होती थी. कैसे  सड़कों को जाम किया जाए जिससे दूसरी कम्युनिटी के लोग परेशां हो जाएँ और कुछ हरकत करे जो दंगे को भड़काने के काम आएगी. 

III. Concluding Remarks 

Can these statements be called a legitimate exercise of dissent? Is talking about disorder, instigation of collection of acid, bottles, chilli powder etc and their distribution constitutionally protected right to dissent? The feeling of the high court that the government seems to be misusing UAPA 1967 is correct. It is also correct that there was no prima facie evidence of application of UAPA 1967. But considering the alleged conduct of the accused as constitutionality protected form of dissent is patronising the conduct of accused against whom there is prima facie evidence of inciting disorder and violence. The High court should reconsider its statement and reframe it because such statements will be used at various national and international forums. This reminds the minority opinion of Chandrachud, J. in Romila Thapar case (28 Sept 2018) where he observed as under:

"Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where, however, the expression of dissent enters upon the prohibited field of an incitement to violence or the subversion of a democratically elected government by recourse to unlawful means, the dissent ceases to be a mere expression of opinion. Unlawful activities which violate the law have to be dealt with in accordance with it."  

The screen shots establishes (prima facie)that the expression of dissent by accused entered "upon the prohibited field of an incitement to violence." More than one eyewitness statements specifically mention that the accused were active participants in the meetings where "subversion of a democratically elected government by recourse to unlawful means" was openly promoted. Indeed some who were present in the meeting have opposed the idea of violence, planning of riot. They were threatened of dire consequences (though not by the accused but their active friends which links a conspiracy angle where the accused could be involved). The HC missed the point that dissent ceases to be mere expression of opinion when it has tendency of violence or disorder. "Unlawful activities which violate the law have to be dealt with in accordance with it." Therefore the HC Delhi has committed a mistake in making these statements in a matter where more than 50 persons were killed, properties worth crores was damaged, and the reputation of Indian State was demolished in the time when US President was in Delhi.

1. Who is abuser of law: Both (State and Protesters)

The Government as well as  the accused both abused their position. The Government  abused its authority and power while the protestors (accused) abused their right to free speech. The imposition of UAPA 1967 establishes that the government did not do its homework well.  It might have used this law to convey a signal that if protest becomes violent, zero tolerance will be the policy even in those cases which can be dealt with the classical criminal laws.  

The screenshot establishes that the protestors abused their freedom of speech and expression as well as  their right to protest. It is a lesson for both. What worries me is the allegations against the students of higher education. Though the allegations under IPC (planning a peaceful protest but actually executing a violent protest with the purpose of riot among Hindu Muslims) are yet to be established, the screenshots and the statements of witnesses demonstrate a disturbing story. If they are correct, it is a big question mark on academic institutions, its socio-political environment. How do students get this much time to plan a violent protest? What is the role of academic fraternity in such situations? What are we academicians teaching and doing on the campuses?     

Wrong use of National security laws : remedies

The wrong use of UAPA 1967 or counter terror legislations is not something new. It may be due to negligent conduct of the government officials or can be a part of a deliberate design to deal with the opponents. The government knew that they had no evidence to establish UAPA 1967 but they continued with it so that the accused stay in jail for a reasonable period. How to check such misuse?  The government cannot take action because it is a party to the wrong decision. In Nambi Narayanan case (March 2018), the Supreme court has ordered to fix responsibility for wrongful arrest. But the Kerala government has declined to take any action under one or other pretext. Ultimately the Supreme Court has ordered the CBI to do the needful based on the reports of a fact finding committee headed by a former Supreme court judge. The case of Natasha Narwal is different. It is not a case of wrongful arrest. And unlike Nambi Narayanan (where misuse of legal and judicial process was established beyond reasonable doubts by the Supreme court), Natasha Narwal is at the initial stage. However, based on the screenshots available with the Delhi high court judgement, I will treat it a case of wrongful imposition of UAPA 1967 though a conclusive judicial finding is yet to be done.  On the reform side this author has proposed in his previous writings (See case comments in the Indian Law Institute News Letter): 

1. Can the high court be a little more active in fixing the responsibility of such negligence or deliberate design? It may ask the legal department of the government if they are aware of the difference between a criminal activity and a terrorist activity? Are they conscious of Hitendra Vishnu Thakur's decision? The court can ask the officials responsible for it to go for a refresher course or training programme to understand the basics. A similar order was made in State of Gujarat v. Kishanbhai, (2014) though it was at acquittal stage.  

2. Secondly, can the high court ask the government to submit a compensation amount in the High court registry? The grant of such compensation can be made to the accused once the case is conclusively decided in their favour. The accused were charged under IPC as well as  UAPA 1967. They had to stay in jail for a longer period because of UAPA 1967. Wrong imposition of UAPA 1967 was against the “procedure established by law” because it was unfair, unjust and unreasonable. There was hardly any evidence which could connect the accused to terror activities. This was violative of personal liberty under article 21. A constitutional tort was committed. For constitutional tort compensation can be granted. It has been granted in many cases of misuse of power by the State. However, the judicial approach is very conservative. In the case of Akshardham Attack, the Supreme court declined to grant any compensation though another bench of the Supreme court has reached a finding that the accused of Akshardham Attack were falsely implicated. If an honourable acquittal does not deserve compensation under constitutional tort, it is very difficult to argue for compensation in Natasha Narwal case which is still at pre-trial stage. 

[THANKS TO -Pranshu, Kartikey, Sidhartha [LLM-pursuing(2020-21),ILI] for significant suggestion]