The Supreme court of India recently decided bail pleas in the Delhi riots (2020) case under the Unlawful activities (prevention) Act (UAPA). In this bail is denied to Umar Khalid and Sharjeel Imam. Bail granted (with strict conditions) to Gulfisha Fatima, Meeran Haider, Shifa-Ur-Rehman, Mohd. Saleem Khan, Shadab Ahmed. The court classified the accused based on a “ hierarchy of participation“. This hierarchy shifts the focus from “mere membership” to the specific role and intent of the accused.
What is “Hierarchy of Participation”?
The court grouped accused persons according to their alleged level of involvement.
Level1: the role is Conceptualization, direction, orchestration, and mobilization. These individuals are seen as the “brain” behind the conspiracy. They are involved in the strategic planning of acts intended to threaten the sovereignty or integrity of India. The bail in this Generally denied, as the court views their role as having “autonomous capacity” to influence the conspiracy and its outcome.
Level2: The role is Providing logistical support, managing funds, or recruiting members. They bridge the gap between planners and executors. This includes those who “knowingly facilitate” or “advocate” for terrorist acts (Section 18). The bail Depends on the “prima facie” evidence of their intent to further the terrorist act itself rather than just an ideological cause.
Level3: the role is Facilitators with limited, local, or logistical roles. This includes people who may have attended meetings or were part of WhatsApp groups but did not have a decision-making role or a clear intent to commit a “terrorist act.” the bail is Often granted, especially if there is a long delay in trial. The court holds that for these “minor participants,” prolonged pre-trial detention becomes disproportionate and punitive.
Why is this controversial?
It includes protest planning via WhatsApp groups, messaging platforms is normal democratic activity and treating such organization as terrorist designs risks, criminalizing dissent and creating a chilling effect on the right to protest. Khalid and Imam were arrested as young individuals and they spent around 5 years in custody. Trials has not yet begun because the charges are not framed and about 700 witnesses are listed. The results say Defense arguments like long incarceration without trial were rejected and bail option for Khalid and Imam were narrowed.
UAPA: power VS proportionality
UAPA was strengthened after grave terror incidents. its article argues there is a difference between mass terror attack and alleged roles in protest related violence but however the state increasingly uses UAPA to suppress opposition, quell dissent, and avoid ordinary criminal law safeguards. the legal provisions are:
- Section 43D (5), UAPA: bail only if accusations not prima facie true.
- Section 15, UAPA: broad definition of terrorist attack.
