Introduction:

In the case titled Arsalan Feroze Ahenger v. National Investigation Agency, the Delhi High Court recently dealt with an important question concerning the applicability of Section 18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in the digital domain. A Division Bench comprising Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar dismissed the bail plea of the appellant, Arsalan Feroze Ahenger, who had been charged under the UAPA for his alleged involvement in disseminating radical content and recruiting youth for terrorist activities using social media platforms. The case presents critical legal interpretations of what constitutes conspiracy and abetment of terrorist acts in a technologically advancing world where physical acts are no longer prerequisites for being considered a threat to national security. The prosecution, represented by Mr. Rajesh Mahajan, SPP, along with Mr. R.K. Bora, contended that Ahenger’s social media activities went beyond mere expression of opinion and directly contributed to the radicalization and recruitment of vulnerable youth into terrorist outfits such as The Resistance Front (TRF). On the other hand, the appellant was represented by a team of advocates including Mr. Siddharth Satija, Mr. Sowjhanya Shankaran, Mr. Akash Sachan, and Ms. Anuka Bachawat, who argued that the evidence relied upon by the National Investigation Agency (NIA) was circumstantial and not sufficient to deny him bail under the stringent provisions of UAPA. The court, however, emphasized that Section 18 of UAPA is drafted broadly enough to cover digital activities such as creating and managing social media groups meant for spreading extremist ideologies, and that such virtual acts of incitement and glorification of terrorism do fall within the ambit of criminal conspiracy and abetment under the Act.

Arguments on Behalf of the Appellant:

The counsel for Arsalan Feroze Ahenger contended that the prosecution’s case lacked direct evidence linking the appellant to any executed terrorist act. They emphasized that the alleged radical content shared through social media platforms was not accompanied by any concrete plan or act of violence committed by the appellant himself. It was submitted that the NIA had relied heavily on digital footprints—WhatsApp messages, Telegram group memberships, social media posts, and Gmail IDs—that were speculative in nature and did not conclusively establish that the appellant’s activities had incited any real act of terrorism. The defence argued that Ahenger’s association with the slain militant Mehran Yaseen Shalla could not be interpreted as participation in terrorism. They insisted that sharing photographs or forwarding messages glorifying Shalla did not amount to a conspiracy or incitement under Section 18 of UAPA. The appellant’s counsel also pointed out that there was an inordinate delay in commencing the trial, and Ahenger had already been in custody for a considerable period without substantive progress in proceedings. Relying on Article 21 of the Constitution, which guarantees the right to a speedy trial, they pleaded that prolonged incarceration without trial amounted to a violation of fundamental rights and warranted release on bail. The appellant’s legal team also stressed that Section 43D(5) of the UAPA, which mandates denial of bail if prima facie the accusation appears true, must be applied with caution and should not be used to prolong pre-trial detention on tenuous grounds.

Arguments on Behalf of the Respondent (NIA):

The Special Public Prosecutor representing the NIA argued that the digital material recovered during investigation clearly showed that Ahenger was actively involved in disseminating radical ideology and glorifying terrorist figures. According to the NIA, the appellant had created and managed multiple social media groups with names like “Ansar Gazwat-UI-Hind (AGH)” and “Shaikoo Naikoo,” which were specifically designed for sharing propaganda content linked to banned terrorist outfits. It was submitted that Ahenger used multiple Gmail IDs and engaged in encrypted communications on platforms like Telegram and WhatsApp to avoid detection. The NIA further alleged that the appellant was closely associated with Mehran Yaseen Shalla, a known terrorist, and used his martyrdom as a propaganda tool to instigate others into joining terrorist groups like TRF. The respondent emphasized that the appellant’s digital activities were not mere expressions of opinion but had the real-world effect of radicalizing and mobilizing youth for unlawful activities against the state. They argued that in light of the technological sophistication involved in modern terrorism, digital acts of incitement, glorification, and recruitment must be treated on par with physical acts of terror. The prosecution submitted that granting bail in such circumstances would send a dangerous message and hamper ongoing counter-terrorism efforts. Moreover, they contended that the material available satisfied the legal threshold required under Section 43D(5) of UAPA, justifying the continued detention of the accused.

Court’s Judgment and Analysis:

The Delhi High Court, after meticulously examining the submissions made by both sides and the material on record, observed that the nature of terrorism has evolved with the advent of digital technologies and social media. The Court held that Section 18 of the UAPA, which deals with punishment for conspiracy, attempt, advocacy, abetment, or incitement of terrorist acts, is drafted broadly and is not confined to physical acts alone. It categorically stated that the use of social media platforms for disseminating radical information and inciting youth to join terrorist groups falls within the purview of Section 18. The Bench emphasized that in the present case, the appellant had used various social media platforms such as Facebook, WhatsApp, Telegram, Instagram, and Twitter to promote extremist ideologies and glorify individuals like Mehran Yaseen Shalla, thereby encouraging vulnerable individuals to join terrorist groups like TRF. The Court noted that the appellant had formed online groups named after banned terror outfits, created multiple Gmail IDs for anonymized communication, and used images and videos that had the potential to incite communal hatred and unrest. These digital actions, though not physical in nature, demonstrated a clear intent to contribute to the ecosystem of terrorism by aiding recruitment, radicalization, and glorification of banned terrorist organizations. While the Court acknowledged the importance of the right to a speedy trial under Article 21 of the Constitution, it held that the severity of allegations and the impact of such digital propaganda on national security outweighed the plea for bail at the current stage. The Bench observed that the evidence presented, including social media data and digital communication logs, provided a prima facie case against the appellant, thus invoking the bar to bail under Section 43D(5) of UAPA. However, the Court added a caveat by stating that if there is undue delay in the commencement of trial, or if trial proceedings are not expedited in the near future, it would remain open to the appellant to approach the competent court for bail on those grounds. The High Court ultimately concluded that the digital footprint of the appellant pointed towards a conscious and deliberate effort to propagate extremist ideology and incite terrorist activities, thereby justifying the denial of bail under UAPA.