!” [We will break all the cages, and change the f history]
“Zor hai kitna daman mein tere, dekh liya hai dekhenge !” [How strong is your oppression, we have seen, we shall see]
These were the slogans that rent theair on the evening of June 17, as student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha walked out of Tihar Jail after spending more than a year behind bars. There were hugs, kisses and tears as their friends and allies greeted them outside the prison complex. They raised their hands, as if in defiance, to the slogans of “Inquilab Zindabad!”, their clenched fists conveying resilience. It seemed the long year in prison had done little to crush their spirits. The youngest of the three, 25-year-old Tanha, wore a mask he had made himself, with “No CAA/No NRC” painted on it. Unambiguous in the signal he gave out, he told mediapersons that the movement against the unjust citizenship laws would continue. Devangana told the press she could not believe she was outside the prison gates under the open skies. After her arrest, this was the first time she was stepping out of prison.
Natasha had received a two-week interim bail to complete the last rites of her father Mahavir Narwal, who died of COVID in May. When he was admitted to the hospital, Natasha’s family had approached the court to allow her to be with him, but the request was denied. Poignant images of Natasha at Mahavir Narwal’s cremation laid bare the injustices of the criminal justice and prison system.
As the three student activists stood outside Tihar Jail, Natasha told the press that she wished she could have been there with her father as he struggled with COVID. She also spoke of the prison conditions that ravaged lives behind bars. Devangana said she had expected that at any moment, a policeman would come from behind and re-arrest them in another case.
Her fear was not unfounded. Two days of high drama followed the Delhi High Court’s order that granted them bail. Even as the three stood outside the prison walls, they knew that the Delhi Police had moved the Supreme Court challenging the bail order. Last year, a similar pattern had followed their release.
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On May 23, 2020, the two “Pinjra Tod” (Break the cages) activists, who had actively taken part in the women’s movement against CAA/NRC, were arrested in connection with the larger conspiracy behind the north-east Delhi riots of February 2020. They were accused of instigating local Muslim women and being part of a conspiracy along with groups such as the Delhi Protests Support Group, the Jamia Coordination Committee, Warriors and Auraton ka Inquilab.
They were booked under FIR 48/2020 dated February 24. The next day, they were granted bail by a Delhi court, and the magistrate observed that there was “no reason to maintain the charge under Section 353 IPC” (the only non-bailable offence in the FIR), as “they were merely protesting against CAA and NRC”. Within minutes the Special Investigation Team of the Crime Branch produced FIR 50/2020 dated February 26 and re-arrested them inside the courtroom. They were subsequently slapped with charges under the draconian Unlawful Activities (Prevention) Act. Their appeals for bail under this charge were rejected in the Sessions Court.
In all, there were four FIRs against Devangana and three against Natasha. They had secured bail in FIRs 48/2020 and 50/2020. On September 16, a charge sheet was filed under FIR 59/2020 dated March 6 which ran into thousands of pages. Supplementary charge sheets were filed in November and then March this year. There are more than 15 people accused in the charge sheet with the prime accused being Umar Khalid and Danish, a resident of north-east Delhi. Danish secured bail shortly after his arrest in March last year, while Umar Khalid has been in jail since September 2020. Safoora Zargar, who was pregnant at the time, and Faizan Khan were also granted bail. The others still in jail are Sharjeel Imam, Khalid Saifi, Ishrat Jehan, Meeran Haider, Tahir Hussain, Gulfisha Fatima, Shifa ur Rehman, Shadab Ahmed, Athar Khan, Taslim Ahmed, Salim Malik and Mohammed Salim Khan.
On June 15, a Bench of Justices Siddharth Mridul and Anup J. Bhambani granted bail to Natasha, Devangana and Asif, drawing a clear line between protests and terrorist activity. They said: “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.”
The bail orders
The two “Pinjra Tod” activists were represented by Advocates Adit S. Pujari, Tusharika Mattoo and Kunal Negi. In the bail order for Natasha, the Bench said that after carefully considering the allegations in the September 2020 charge sheet, along with the material produced by the police, they were “not persuaded to think that prima facie the accusations made against the two make-out any offence under Sections 15, 17 and/or 18 of the UAPA; and so the stringent conditionalities in Section 43D (5) of the UAPA would not apply”.
In the same order, they went on to say that allegations relating to inflammatory speeches, organising of “ chakka jam ” (blockading roads), instigating women to protest and other similar allegations were, in their view, at worst, evidence that the accused participated in organising protests, but they could discern no specific or particularised allegation, much less any material, to bear out the allegation that they had incited violence, not to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA.
Also read: Student activists get bail in Delhi riots case
In the charge sheet, Asif, who was represented by Senior Advocate Siddharth Aggarwal, advocates Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhari and Nitika Khaitan, was accused of visiting Muslim areas under instructions from his “co-conspirators” to coordinate with local Imams and help in orchestrating the anti-CAA protests at various locations in Delhi. In the bail order for Asif, the same High Court bench observed that there was a recurrent theme, repeatedly urged by the state, that what was contemplated, and in fact brought to fruition, was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. The bench said that it was “unpersuaded and unconvinced” with this submission since it was not founded on any specific factual allegation. The bench was of the view that the “mere use of alarming and hyperbolic verbiage” in the charge sheet would not convince it otherwise. Upon a closer scrutiny of the submissions made on behalf of the state, the bench noted that the submissions were based on “inferences drawn by the prosecuting agency and not upon factual allegations”.
The orders not only did not leave any room for doubt as far as the three accused were concerned but also went a step ahead and opined on the entirety of the prosecution’s case.
Social activist Teesta Setalvad summed up the three orders thus: “The significance of the substantively reasoned orders will not merely grant these three persons their freedom (eventually) but has laid down a just and carefully creative understanding of ‘offences’ deliberately construed by the state as acts of terror under a draconian statute. The UAPA, which after amendments made in 2004 and 2008, introduced acts of terrorism, funding terrorist activity and conspiracy to commit acts of terror into its ambit (the law dates back to the 1960s), has been regularly abused since then, often to incarcerate politically inconvenient voices, more especially so by the executive in the past seven years.”
Delay in release
Despite the clear bail orders, the three student activists were not released on June 15, and the trial court, citing a “heavy board of bail applications”, deferred the orders for immediate release of the three to the next day. At the same time, the Delhi Police moved the Supreme Court challenging the bail orders and sought more time to verify their addresses and sureties in the trial court. Communist Party of India (Marxist) politburo member Brinda Karat, who was present in the court to stand surety for Natasha, told the press that the Delhi Police was deliberately trying to “subvert and sabotage” the Delhi High Court order.
Brinda Karat said: “I was in court all day and it was a shameful day when the Delhi Police, which is under the Home Ministry, did everything possible to subvert and sabotage the Delhi High Court judgment granting bail to the UAPA detenus. My surety for Natasha was double-checked by the Delhi Police, once yesterday and then today in the morning, as they did with the others. Despite this, the Delhi Police said in court that their verification was still incomplete. The Delhi Police has moved the Supreme Court challenging the HC judgments granting them bail and they are delaying the proceedings so that they can hold these students in prison while hoping for the apex court to overturn the Delhi HC order. The excuses they gave in court were bizarre.”
Also read: How the UAPA and the NIA are used to crush dissent
The Delhi Police was apparently sending their officials by Rajdhani Express to Assam to verify Devangana’s permanent address. After two days of such drama, on June 17, the Additional Sessions Court, Karkardooma, issued orders for the immediate release of the three activists and dismissed the applications filed by the Delhi Police seeking more time to verify their addresses and sureties.
Meanwhile, in the Supreme Court, Solicitor General Tushar Mehta vociferously argued that the Delhi High Court order watered down the UAPA and asked for a stay on the judgment. Tushar Mehta told a bench of Justices Hemant Gupta and V. Ramasubramanian: “I can venture to say that by this judgment, the entire UAPA Act has been turned on its head along with the Constitution.” The bench said it was surprised that in a bail application, a 100-page judgment discussing all law was passed. Senior Advocate Kapil Sibal, representing the three students, suggested to the bench that they may say that it will not be treated as a precedent in the interim to which the Solicitor General concurred and said: “If the accused are out on bail, let them remain out. I am not asking for a stay that nullifies that effect. But please stay the judgment.” The bench concluded that it would not interfere with the bail granted to the three but the impugned judgment would not be treated as a precedent by any of the parties in any of the proceedings.
Petition to improve prison conditions
Natasha and Devangana told Frontline that even as they continue to defend their case in the courts, they would work on improving the pathetic prison conditions which they had experienced first-hand. While they were still inside prison, they had petitioned the Delhi High Court highlighting the plight of prisoners. Given the pandemic, the physical mulaqat [meeting] in prisons across India was suspended and only 3 e- mulaqats or video conferencing of 15 minutes each were allowed in Tihar. Before the outbreak of the pandemic, eight physical meetings had been allowed every month, for 30 minutes each .
Natasha and Devangana, in their writ, requested for a permanent facility of e- mulaqat for the same duration as the physical mulaqat . Given the psychological trauma of incarceration, they sought access to doctors, therapists and other medical professionals for prisoners. To enable those incarcerated to continue with their education, they pleaded for access to their research supervisors and resource persons through video conferencing.
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They pointed out that regular contact with family members was essential for prisoners and due to the digital divide in the country, family members of many inmates did not have smart phones. With the growing unemployment and loss of livelihood the families of inmates did not necessarily have money to buy data packs. They requested that some form of basic physical mulaqat should be made available for the inmates. They also pointed out the need for a computer centre which, at that moment, was not functional at the prison.
They submitted that the process of getting permission for a daily phone call for five minutes was very tedious and required a post-paid connection on the other side, which inmates who came from socially disadvantaged backgrounds were unable to procure. They asked for a diversity of options and means to contact their families.
The Delhi High Court asked the authorities whether physical meetings with family members could be permitted on request of undertrial prisoners once a week even during the pandemic, after ensuring that those coming to meet wore masks and PPE gear.
The court also asked authorities to inform it about steps that could be taken to make the computer centre at Tihar Jail operational for prisoners to have a limited access to websites which gave information relating to FIRs and the courts’ portals. It also sought instructions from the jail authorities regarding facilities available at the legal aid centre, where lawyers draft petitions on behalf of prisoners. The court suggested that the e- mulaqat could be increased to four a month so that prisoners could use the opportunity once a week.
