In paras 86-90 of the bail order in the Delhi Riots cases, the Supreme Court offers an interpretation of Section 15 of the Unlawful Activities (Prevention) Act so expansive that it absorbs conduct traditionally governed by ordinary criminal law and procedure into the domain of terrorism.
The concern, however, is not about the outer limits of statutory language alone. What is more troubling is the manner in which this reasoning eats away the graded structure of criminal law itself. The structure through which - different kinds of social harm are classified, penalised, and procedurally managed. And that precisely is what ought to trouble us more, for it carries the most far-reaching implications.
At the outset, the Court notes that the definition of a “terrorist act” is structured around two elements:
First, the requisite intent to threaten the unity, integrity, security, or sovereignty of India, or to strike terror in the people; and
Second, the nature of the act and its consequences (para 86).
The Court emphasises that the Parliament did not confine terrorism to “conventional forms of violence” and consciously used the expression “by any other means of whatever nature.” This phrase, the Court observes, cannot be rendered otiose (para 87).
Building further, the Court underscores that the consequences contemplated under Section 15 extend beyond death or physical destruction. For acts which disrupt supplies or services essential to the life of the community, or which destabilise civic functioning, are expressly included within the statutory imagination of terrorism (para 88).
And hence, Section 15 when read together with Section 18 (which speaks of ‘punishment for conspiracy’), the Court concludes that terrorist activity need not be limited to the final act of violence, but may encompass preparatory, facilitative, and coordinative conduct carried out through collective and concerted effort (paras 89-90).
Taken at face value, much of this is unobjectionable. Parliament did not intend Section 15 to be limited to paradigmatic armed attacks, and it would be artificial to insist otherwise.
The difficulty, therefore, lies not in recognising that terrorism may take non-conventional forms, but in the absence of any limiting principle to accompany this expansion. Special statutes such as the UAPA are justified precisely because they are meant to address a qualitatively distinct category of harm. Ordinary criminal law, by contrast, already anticipates and responds to large-scale disorder through offences relating to unlawful assembly, rioting, mischief, and public tranquility.
This distinction matters because criminal law is not merely a catalogue of outcomes. Different offences exist not simply because different harms exist, but because those harms are also understood to differ in kind (say in the face of moral blameworthiness and the institutional response they justify).
This is, however, not to say that the consequences identified by the Court can also describe terrorism. That would be descriptively accurate. But descriptiveness alone cannot do the work of penal classification. For again, Section 15 does not merely catalogue harmful outcomes, but demarcates a category meant to justify exceptional treatment. Once disruption of civic life, coordinated collective action, and destabilisation of essential services are taken to be sufficient descriptors of terrorism (without supplying a limiting principle) the boundary between terrorism and public disorder becomes porous. Large protests that paralyse cities, labour actions that halt essential services, or mass political movements that strain public order - all begin to look indistinguishable from the conduct Section 15 is said to capture.
The difference between terrorism and ordinary criminality then turns less on principle, but on prosecutorial characterisation.
And so, the concern, I submit, is not hypothetical by any stretch. It is structurally embedded in the bail regime under the UAPA itself.
Section 43D(5), as interpreted in Watali, narrows the judicial role at the stage of bail. Once the court is satisfied that the accusation is prima facie true, further inquiry is foreclosed. Questions of proportionality, necessity, or individual culpability are displaced by a far narrower inquiry - i.e. whether the prosecution’s narrative can plausibly be located within the contours of terrorism.
It becomes worth returning to go back to the assembly debates when Mr. Asadudding Owaisi aptly noted:
“Another issue is about bail… This is a limit on judicial discretion. Any public prosecutor will stand up and oppose the bail. What will the Case Diary say? Will the Case Diary write flowers about the accused?...”emphasis mine
Esepcially in the context of mass protest – where causation is diffuse, agency is often collective, and escalation frequently occurs beyond the control of any single actor; the consequences are predictable. Once violence enters the picture, however distantly be it may, the threshold for continued detention is easily met. Preparatory meetings, speeches, logistical coordination, protest planning (conduct that would ordinarily be scrutinised under the BNS) can now very well be capable of being redescribed as facilitative terrorism.
What follows is a subtle but powerful sorting mechanism. Low-intensity, non-disruptive dissent continues to be managed within ordinary criminal processes. But all intense protest in case of road blocks or any that spirals into violence (even if through unintended escalation) is pushed into the exceptional domain of terror law.
High-intensity dissent is thus structurally disfavoured, not through conviction, but through prolonged pre-trial detention. Exceptional law ceases to be exceptional when its triggering conditions are defined so broadly that they mirror ordinary disorder. The bail embargo under Section 43D(5), once conceived as a narrow exception justified by the unique threat of terrorism, begins to operate as a default response to political escalation.
But none of this is to deny that mass violence can, in some circumstances, amount to terrorism. Nor is it to suggest that the State is powerless to respond to coordinated attacks on civic life. The point is more basic. If terrorism is to remain a meaningful category, and something that justifies exceptional treatment - there must, and has to be something that distinguishes it in principle from riot, rebellion, or large-scale disorder. Intent alone cannot do this work when intent is inferred from disruption itself. Similarly, consequence alone cannot do it when those consequences are already familiar to ordinary criminal law.
The failure of the bail order then is not that it reads Section 15 too broadly. It is that it reads it broadly without discipline. And in doing so, it allows terror law to seep into spaces traditionally governed by ordinary criminal process, carrying with it procedural consequences that are anything but ordinary. That is what ought to trouble us most. Not simply that bail was denied to some and granted to others, but that escalation itself is now enough to normalise exception. In that world, terrorism no longer describes a qualitatively distinct harm. It becomes a prosecutorial lens.
And that, for a constitutional criminal justice system, is a far more unsettling legacy than any single bail order.
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