Introduction:

The Delhi High Court recently delivered a crucial verdict emphasizing the misuse of social media and encrypted platforms by terrorist organizations as a significant factor when awarding sentences in cases related to terrorist activities. The judgment also discussed the use of journalistic credentials for inciting violence. A division bench of Justice Prathiba M Singh and Justice Amit Sharma observed that courts must weigh not only the crime committed but also its impact, and the propensity of the offender to repeat similar acts in the future.

The case involved appeals by two convicted women, Hina Bashir Beigh and Sadiya Anwar Shaikh, seeking a reduction of their sentences imposed under the Unlawful Activities Prevention Act (UAPA). Both were accused of being affiliated with the proscribed terrorist organization Islamic State Khorasan Province (ISKP) and carrying out anti-national activities in India.

Arguments of Both Sides:

Prosecution’s Contentions (NIA):

The National Investigation Agency (NIA) opposed the appeals, making the following points:

1. Misuse of Social Media: The agency alleged that the convicts used anonymous IDs on social media platforms to conceal their identities and disseminate anti-national content.
2. Seized Materials: Incriminating evidence, including anti-national magazines such as Voice of Hind, was seized during the investigation, which was linked to disclosures made by Beigh.
3. Affiliation with ISKP: The prosecution emphasized the convicts’ close association with the terrorist organization and their participation in anti-national activities.
4. Intentional Incitement: It was argued that the appellants intentionally used their journalistic credentials to publish and distribute material designed to incite violence, especially during the CAA-NRC protests.

Defence’s Contentions (Appellants):

The appellants, through their counsel, argued for a reduction in their sentences, presenting the following points:

1. Mitigating Factors: Both convicts were women and may not have been fully aware of the larger plans of the primary accused.
2. Nature of Sentences: The defence argued that the sentences imposed were excessive and needed to consider the personal circumstances of the convicts.
3. Association Not Equal to Action: It was submitted that their association with the primary accused did not necessarily translate into active participation in terrorist acts.

Court’s Observations:

• Factors in Terrorism-Related Sentences:

The High Court analyzed principles from Indian and international jurisdictions, identifying key considerations for sentencing in terrorism-related cases:

1. Impact of Crime: The broader societal and national impact of the crime must be considered.
2. Potential for Recidivism: Courts must assess the likelihood of the offender repeating similar offences in the future.
3. Aggravating and Mitigating Factors: While the heinous nature of the crime is an aggravating factor, personal circumstances and the degree of participation can serve as mitigating factors.

• Role of Social Media and Encrypted Platforms:

The bench noted the increasing misuse of social media and encrypted communication platforms by terrorist organizations to evade detection. It highlighted the need to differentiate such cases from those involving individuals unwittingly drawn into criminal activities.

• Misuse of Journalistic Credentials:

The court expressed concern over the use of journalistic credentials to publish inflammatory material aimed at inciting violence, particularly during sensitive protests like those against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC).

Judgment:

• Sentence Modification for Hina Bashir Beigh

The court acknowledged the mitigating factor of Beigh being a woman who might not have been fully aware of the primary accused’s larger plans. However, it emphasized her active role in inciting violence through publications.

1. Original Sentence: 8 years each for offences under Sections 38(2) and 39(2) of UAPA.
2. Modified Sentence: 6 years each for the offences.

• Sentence Modification for Sadiya Anwar Shaikh:

Similarly, the court considered mitigating factors in Shaikh’s case but noted her association with anti-national activities and incitement of violence.

1. Original Sentence: 7 years each for offences under Sections 38 and 39 of UAPA.
2. Modified Sentence: 6 years each for the offences.

• Additional Observations:

1. No Fine Imposed: The court refrained from imposing fines on either of the convicts.
2. Concurrent Sentences: All sentences were to run concurrently, as originally ordered.

Key Takeaways from the Judgment:

• Balanced Approach to Sentencing:

The judgment underscored the importance of balancing aggravating and mitigating factors while sentencing, particularly in terrorism-related cases involving women and other vulnerable groups.

Misuse of Technology:

The court highlighted the dangers of encrypted platforms and social media misuse, urging vigilance and accountability in monitoring such activities.

• Need for Policy Guidelines:

The judgment recognized the absence of comprehensive policy guidelines for sentencing in terrorism-related cases in India, calling for a nuanced approach similar to international practices.