Authorities have succeeded in scaring other young boys and girls to not protest, Delhi High Court judgment is path-breaking: Justice Deepak Gupta

The Delhi High Court on Tuesday granted bail to Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal in a Delhi Riots case under the Unlawful Activities (Prevention) [UAPA] Act. The verdict is being seen as a departure from recent cases where bail has been denied in such cases..Even as the High Court receives plaudits for its progressive order, it has also laid down ground-breaking points of law, says retired Supreme Court judge, Justice Deepak Gupta..Bar & Bench's Debayan Roy spoke with Justice Gupta to understand the finer nuances of the bail orders passed today. Excerpts from the interview follow..Q. There is a lot of emphasis on personal liberty in the orders delivered today. There have been similar cases where bail has been denied, with "the gravity of the offence" being cited as a reason. What is your take on the approach taken by the Court today?.Justice Deepak Gupta: This judgment stands as a beacon of hope for people who believe in liberties, especially civil liberties of the citizens. But this is very important in another context, because these are cases in which the UAPA is invoked where there is a presumption that bail cannot be granted unless the court comes to the conclusion that a prima facie case is made out that bail has to be granted. What the Delhi High Court has today basically held is that bail for an offence under UAPA can be granted even when a prima facie case (for bail) is not made out. So, the judgment stands for liberty and it is very well written. There are common factors in all three judgments delivered today. I am very happy with the way the judgment has been crafted and written..What the Delhi High Court has today basically held is that bail for an offence under UAPA can be granted even when a prima facie case (for bail) is not made out.Justice Deepak Gupta (Retired).Q. The High Court has held that UAPA is not for offences which are otherwise covered by the Indian Penal Code and other statutes, and that a court has to independently apply its mind to a case filed under the UAPA. Do you see these orders changing the way trial courts approach bail applications in UAPA cases?.Justice Deepak Gupta: It is a very good reasoning given by the Delhi High Court as to what UAPA is. It is an Act of 1967 and terrorism was added later on. It's basically for subjects under Entry 1 of List 1 (of the Seventh Schedule of the Constitution), which is 'Defence of India'. .Now, if a murder takes place, it cannot become an offence under UAPA. These are laws which have been enacted to deal with very serious, grave charges where the country’s sovereignty is at stake. I think just because you protest against the Citizenship Amendment Act (CAA), it is not a ground to be charged under UAPA.As far as CAA is concerned, every citizen has a right to protest whether or not it is a justified protest. I may not agree with what protesters are saying, but they have a right to protest as long as the protest is peaceful. Even if it is not peaceful, then the ordinary law will take its course. It does not become a terrorist activity. What the Delhi High Court held is very important: a court has a right to examine whether a case falls within the ambit of UAPA or not..Q. How does one balance concerns of national security and with personal liberty at the stage of bail?.Justice Deepak Gupta: See, obviously if the Court felt that the allegations made out in the chargesheet amounted to being a threat to sovereignty of the country, it would have definitely not granted bail.The Court prima facie came to the conclusion that this does not amount to a terrorist activity, in the sense that it was threatening the sovereignty of nation. This trend of denying bail by just adding something (like UAPA charges) is very serious and courts are reluctant to grant bail in sensitive issues. National security is brought in, so courts are reluctant. Especially when we look at the other two girls including Kalita, when ladies are concerned, most of the charges are not of the act but that protest was organised. etc. If they have done something illegal, they can be tried under ordinary law. But shoving UAPA or any other law just for denying people bail is something the judgment has looked into..This trend of denying bail by just adding something (like UAPA charges) is very serious and courts are reluctant to grant bail in sensitive issues.Justice Deepak Gupta (Retired).Q. Does the High Court bail order lay down any new point of law?.Justice Deepak Gupta: Though it follows the Supreme Court, in many ways, it does. It is a very path breaking judgment. It definitely is. This judgment is also very important since it upholds the right to dissent..Q. What can authorities who invoke UAPA against accused in certain offences learn from this judgment?.Justice Deepak Gupta: I hope there is some learning, but I doubt it. In a sense, they have already succeeded. Because by putting these two girls in jail for more than a year, they have now scared a lot of other young boys or girls who wanted to protest and go on the street..It is a very path breaking judgment.Justice Deepak Gupta on Delhi High Court Judgment.Q. Delhi Police is set to appeal against this order in the Supreme Court. What are the chances that it may be set aside?.Justice Deepak Gupta: It is indeed their right. But regarding the outcome, it depends on various other factors. I would uphold it and other judges might have different views. My view may not be the one which is acceptable to some other judges. It depends on the judges hearing it. But yes, this order will impact other pending Delhi Riots cases. The Delhi Police has just put in a 19,000 page chargesheet and charged hundreds of people for offences with conspiracy theories so vaguely woven in that I doubt it will ever stand the scrutiny of law. But the problem is you will incarcerate people for years and years, because with a 19,000 page chargesheet and witnesses running into thousands, the trial will never come to an end. You cannot keep people in jail when you can clearly see that the acts of the police are designed in such a way that they cannot get bail.