The Delhi High Court on Tuesday held that the fundamental right to protest is not outlawed and cannot be termed as a “terrorist act” within the meaning of the stringent anti-terror law UAPA.

It made this observation while granting bail to JNU student and Pinjra Tod activist Devangana Kalita in a case of larger conspiracy related to the northeast Delhi riots last year, in which 53 people were killed while more than 400 were injured.

A bench of Justices Siddharth Mridul and Anup Jairam Bhambhani said: “Right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1)(b) of our Constitution, surely the right to protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of the UAPA, unless of course the ingredients of the offences under Sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in the charge sheet and the material filed therewith.”

The High Court emphasised that offences under the UAPA are treated as extremely serious, inviting very severe punishment; and therefore, the formation of an independent judicial view by the court at every step of the way is imperative.

The bench added that it is constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the state has blurred the line between the constitutionally guaranteed “right to protest” and “terrorist activity”.

“If such blurring gains traction, democracy would be in peril,” said the bench.

Kalita was arrested for allegedly hatching a conspiracy to orchestrate riots in Delhi, the capital’s first since 1984’s anti-Sikh riots. She was accused of calling people to come out and block roads against the Centre’s contentious Citizenship Amendment Act (CAA). The police claimed this resulted in violence, which broke out between anti- and pro-CAA protesters, leading to the death of 53 people and leaving more than 400 injured. On January 29, a trial court dismissed the bail applications of Kalita.

Citing allegations contained in the charge sheet and the material adduced therewith, the court said: “We do not think that the accusations made against the appellant under sections 15, 17 and/or 18 of the UAPA are prima facie true.”

The court added that inflammatory speeches, ‘chakka jams’, instigation of women protesters and other actions, to which Kalita was alleged to have been party to, crossed the line of peaceful protests permissible under the constitutional guarantee, but, would yet not amount to commission of a “terrorist act” as understood under the UAPA.

“We are afraid, that in our opinion, shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under Sections 15, 17 and/or 18 of the UAPA,” said the court.