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'Activists can stay out but order needs examination'

Activists can stay out but order needs examination
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New Delhi: A day after student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha walked out of Tihar jail on the backs of a landmark Delhi High Court order granting them bail in the UAPA case related to the Delhi riots last year, the Supreme Court of India on Friday directed that this order cannot be used as a precedent by any party before any court.

However, the bench of Justices Hemant Gupta and V Ramasubramanian, while hearing the Delhi Police's challenge to the bail to the three students, clearly set down that it is not inclined to stay their bail as of now and send them to jail just yet, issuing notices to all three accused, returnable in four weeks. The matter will now be taken up in July.

Right-off-the-bat, Solicitor-General Tushar Mehta, for the Centre, called the Delhi High Court's orders "troubling and surprising" and said it could have "pan-India ramifications", seeking that it be stayed immediately lest other accused start approaching trial courts with this as a precedent.

"Trial court will have to entertain a discharge application and replace it with this judgement," Mehta submitted.

The Solicitor General argued that the Delhi riots took place when US President Donald Trump was visiting Delhi. He stated, "These are the statements of the witnesses and confessions of the accused…" He also said the Delhi High Court had turned UAPA "on its head", adding, "I'm serious when I make that submission."

Urging the court to stay the order, Additional Solicitor General Aman Lekhi, assisting Mehta, too intervened and argued that the said order has imputed an ambiguity in Section 15 (definition of a terrorist act) of UAPA which was not even argued before it.

Significantly, the Supreme Court bench noted that there several aspects of the order in question that need examination and hence notice had been issued in the matter. After Senior Advocate Kapil Sibal noted that this is a bail matter, the top court agreed and said that is precisely why certain aspects of the order must be looked into. It said, "We understand the way the Act has been interpreted and that's why we are issuing notice." However, when the bench pointed out that it can stay the effect of this order, it was Sibal who suggested that the court stay the use of it as precedent for the time being instead.

Moreover, the Delhi Police also told the court that the High Court observed that the police initially controlled the riots and so nothing happened and no offence under UAPA was established.

"...if I put a bomb somewhere and the bomb squad defuses the bomb, does it reduce the intensity of the offence?" Mehta asked the bench. "The court made wide-ranging observations when so many people died," SG Mehta said while urging the bench to stay the bail order.

"How does the right to protest include the right to kill and hurl bombs?...The protest was under a perceived belief that CAA was so and so...the lady who killed the former Prime Minister was also protesting against something," SG Mehta further argued while telling the bench to stay the order, without having the accused persons to surrender immediately.

Additionally, Sibal also raised an objection to the petition being filed under the name of DCP (Special Cell) Pramod Khushwaha. He asked as to what authority does the DCP have in filing the application on behalf of the state.

After hearing both parties, the division bench went on to hold that it is not inclined to interfere in the bail granted to the three accused at this stage and hence no immediate stay will be granted. It further ruled that the order will not be taken as a precedent by any of the parties in any of the courts from herein. After issuing notice to Narwal, Kalita and Tanha, the bench adjourned the matter which will now be heard in July.

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