New Delhi: Denying bail to JNU students Umar Khalid and Sharjeel Imam, the Supreme Court, in a 142-page judgment, explained that the word “terror” under Section 15 of UAPA cannot be narrowly construed to include only the conventional modes of violence, such as the use of bombs, explosives, firearms, or other weapons alone.
A reading of the provision in the Unlawful Activities (Prevention) Act, 1967, the court said, shows that Parliament consciously employed an expression not limited to overt violence but covering disruptions to essential services and economic threats beyond death or destruction.
Section 15 of UAPA defines what constitutes a terrorist act. It says that whoever does any act with the intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.
The court, at the same time, clarified that at the stage of deciding a bail plea, it is not required to finally classify or determine the precise provision under which the liability of an accused would arise.
A judicial enquiry that is neither adjudicatory nor perfunctory is, at this stage, confined to determining whether the prosecution material—taken at face value—shows a prima facie nexus between the accused and the alleged terror act, according to the bench of justices Aravind Kumar and N.V. Anjaria.
However, in the cases of both Umar and Sharjeel, the court concluded that the bar under Section 43D(5), which outlines stringent conditions for the grant of bail in UAPA cases, is made out. This refrained the court from considering their plea on the ground of prolonged delay in trial and long incarceration of over five years.
The larger definition of ‘terror’
The Supreme Court’s explanation of terror assumes significance in view of the argument advanced by the counsels for Umar and Sharjeel during the hearing on their bail applications.
Both had contended that the Delhi High Court judgment refusing the duo bail conflated dissent and protest with terrorist activity, warranting the top court’s intervention. They had argued that the prosecution treated their protest activity as constituting a “terrorist act”, without alleging use of bombs, explosives, firearms, hazardous substances, or other lethal means enumerated in UAPA Section 15.
However, the bench disagreed with the definition shared by the defence. The consequences contemplated under the section, it said, reflected Parliament’s recognition that threats to sovereignty—even in the absence of immediate physical violence—through “conduct that de-stabilises civic life, or societal functioning”.
“Apart from death or destruction of property, the provision expressly encompasses acts which disrupt supplies or services essential to the life of the community, as well as acts which threaten the economic security of the nation,” the bench said, as it examined the alleged roles of Umar and Sharjeel in the larger conspiracy behind the February 2020 Northeast Delhi riots.
Based on the hierarchy of participation, the bench prima facie opined that Umar and Sharjeel stood on “a qualitatively different footing from the remaining accused” and that their role was central to the culmination of events in violence. Elaborating further on Section 15, the bench held that UAPA recognises acts that may be the result of collective and coordinated efforts. And this, it added, is punishable under Section 18 as conspiracy, attempt, abetment, advice, incitement and knowing facilitation of a terrorist act.
“The statutory scheme thus contemplates that terrorist activity may involve multiple actors performing different roles towards a common unlawful objective,” the court ruled.
A combined evaluation of sections 15 and 18, it underlined, discloses a legislative design wherein the first section defines the nature of acts that the Parliament has characterised as terrorist acts, whereas the second provision ensures criminal liability is not confined only to final execution but extends to those who contribute to the commission of the act, including all forms of concerted actions.
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Relying on the prosecution
Elaborating on the judicial enquiry at the stage of bail, the bench said it is limited to determining whether the prosecution’s reading is prima facie plausible on the face of the material, and not to see whether it will ultimately succeed during the trial.
“At this stage, the Court does not test whether the witness is truthful; it tests whether, if the statement is taken at face value, it links the appellant to the alleged design in a meaningful manner. It does. It is not a statement of mere association; it is a statement of direction and role allocation,” the court said.
With this, the court opined that the prosecution material, if accepted at face value, supported their contention that the conduct alleged against the two is not an ordinary protest, but a planned and differentiated method of blockade and disruption.
However, it added: “At the bail stage, the court does not determine whether these allegations ultimately satisfy the ingredients of a ‘terrorist act’ under Section 15. What the court examines is whether the prosecution has pleaded a case that goes beyond localised violence or protest-related disorder, and whether the alleged acts are capable, at least prima facie, of engaging the statutory conception of threats to security and public order at a national level.”
The prosecution material relied upon them is predominantly like speeches, meetings, digital communications, and alleged strategic deliberations, commencing immediately after the passage of the Citizenship Amendment Act (CAA).
At the stage of bail, the court added, it cannot reject prosecution material by adopting defence explanations or by testing reliability, admissibility, or credibility, as though conducting a trial. It, at the same time, cannot treat the prosecution material as irrelevant merely because the defence disputes its probative value.
In this backdrop, the court did not weigh into the assertions made by the counsel regarding their clients’ opposition to violence.
“Such an assertion does not, at the bail stage, neutralise an allegation of conspiracy and preparatory orchestration. A conspirator may outwardly couch the conduct in the language of non-violence while engaging in acts intended to create conditions of confrontation and escalation,” it said.
Specifically, in the case of Umar Khalid, the court held that the prosecution narrative against him was not episodic but architectural. It indicates a phased progression, mobilisation, and indoctrination, distinguished through committees and digital platforms, followed by expansion of protest sites into permanent blockades, preparation for escalation, and culmination in coordinated chakka jams and widespread violence, the court said.
The court, for now, accepted the prosecution theory that distinguished between a chakka jam and a dharna, saying the former is disruptive by design.
(Edited by Madhurita Goswami)