Affirming “Active Advocacy” as the Threshold for Denying Bail under the UAPA: Delhi High Court

1. Introduction

The judgment in MD Heydaitullah v. National Investigation Agency (Delhi High Court, pronounced on 10 January 2025) addresses critical issues concerning bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Appellant, Md. Heydaitullah, was accused of supporting and promoting the ideology of the proscribed terrorist group ISIS (Islamic State of Iraq and Syria). He had allegedly joined various pro-ISIS Telegram groups under multiple aliases, disseminated extremist propaganda, and transferred funds to individuals believed to be linked to ISIS. The primary question before the Court was whether such alleged activities reached the statutory threshold to deny bail under Section 43D(5) of the UAPA.

The National Investigation Agency (NIA) contended that the Appellant was engaged in active advocacy of ISIS’s violent agenda and was not merely in “passive” possession of ideological materials. By contrast, the Appellant argued that he only had sympathizing content on his devices, and emphasized that mere possession or sharing of certain materials cannot suffice for denial of bail unless there is active, intentional participation in terrorist acts.

This commentary examines the key issues and evidence presented, integrating relevant precedents (including Thawaha Fasal v. Union of India and NATIONAL INVESTIGATION AGENCY v. ZAHOOR AHMAD SHAH WATALI) to evaluate how the Court arrived at its conclusion, and why it denied bail under UAPA to the Appellant.

2. Summary of the Judgment

The Delhi High Court, comprising Justice Prathiba M. Singh and Justice Amit Sharma, dismissed the appeal for bail filed by the accused-Appellant, Md. Heydaitullah. The Court reasoned as follows:

Active Involvement vs. Mere Possession: The Court distinguished between “mere association” with a terrorist organization and actual “active advocacy or facilitation.” It found that the Appellant allegedly took “bayath” (oath) twice to ISIS leadership, spiritedly discussed jihad, and attempted to recruit like-minded individuals via Telegram. These factors went beyond mere possession of extremist material and constituted prima facie evidence of “active advocacy.”
Chats and Online Activities: Investigations revealed that the Appellant used multiple online aliases on Telegram (for example, “Sam,” “Momin-Believer”) to discuss topics such as the establishment of a Caliphate (Khilafat), weaponizing through 3D printing, and raising funds. The prosecution alleged that he sent at least INR 15,000 to a suspected ISIS sympathizer.
Applicability of Section 43D(5) of the UAPA: The Court analyzed whether the prosecution’s evidence met the heightened standard for denying bail. After perusing the materials found on the Appellant’s devices, it concluded there were “reasonable grounds” for believing that the accusations were true.
Dismissal of Bail: The appeal was dismissed as the allegations—supported by the digital evidence, recovered chat logs, and the alleged financial transactions—met the requirements under the UAPA for continued detention. The Court held that it could not ignore the extensive nature of the propaganda materials and the attempts to secure weapon-making instructions.

3. Analysis

a) Precedents Cited

Thawaha Fasal v. Union of India (2021 SCC OnLine SC 1000): The Supreme Court had emphasized that “mere association” or “mere possession of propaganda materials” might not suffice for conviction under Sections 38 and 39 of the UAPA. The Court here distinguished the present facts by holding that the Appellant’s multi-year efforts to recruit, raise funds, and propagate violence meant he moved beyond mere association.
NATIONAL INVESTIGATION AGENCY v. ZAHOOR AHMAD SHAH WATALI (2019) 5 SCC 1: Laid down the principle that courts should not conduct a “mini-trial” at the bail stage under UAPA and that if the prosecution’s allegations show a prima facie true case, bail must be denied. The Court in the present matter found such prima facie evidence to be sufficient.
Arup Bhuyan v. State Of Assam (2011) 3 SCC 377: The Supreme Court there discussed the limitations of convicting an individual solely on the basis of membership. However, the High Court here noted that the Appellant’s alleged conduct and explicit advocacy of violence in repeated chats formed unequivocal acts beyond mere membership.

b) Legal Reasoning

The Court’s legal reasoning centers on the interplay between Sections 17, 18, 38, and 39 of the UAPA (relating to conspiracy, membership, fundraising, and support for terrorist organizations) and the heightened bail standard under Section 43D(5). The judgment clarifies:

Heightened Scrutiny: The standard for bail under the UAPA is more stringent than typical criminal offences. It requires “reasonable grounds for believing” the allegations are “prima facie true.” The Court found that consistent chats about weaponization, jihad, and explicit references to “taking an oath” to ISIS satisfied that threshold.
From Sympathizing to Active Facilitation: The Court concluded that while sympathizing with an unlawful cause might not by itself lead to punishment under UAPA, stepping into the realm of providing material support, transferring funds, or encouraging individuals to join the cause triggers the penal consequences under Sections 17 and 39 of UAPA.
Continuity of Offence: The Court noted the allegations spanned several years and included not just ideological alignment but also active communication with multiple individuals, potential recruitment, and interest in creating or acquiring weapons. This cumulative evidence pushed beyond “mere ideological possession.”

c) Potential Impact

This judgment underscores that “active advocacy” and facilitation for terrorist activities, even if carried out primarily through the digital sphere, may be sufficient to deny bail under the UAPA. In future cases:

Courts are likely to look more closely at the quality and intensity of the accused’s involvement, distinguishing passive ideological possession from active steps like recruitment, financial transfers, or constant electronic communications promoting violence.
Prosecutions can rely on digital footprints—encrypted chats, social media, and group channels—to show whether an individual truly sought to further terrorist activities, thereby clearing the “prima facie true” requirement.
The judgment contributes to the broader jurisprudence on online radicalization and the seriousness with which the law treats even intangible, digitally propagated extremist content that incites violence.

4. Complex Concepts Simplified

Several technical legal and factual concepts appear in this judgment. Below are concise explanations to foster clarity:

UAPA (Unlawful Activities (Prevention) Act, 1967): A special statute enacted in India to prevent activities directed against the integrity and sovereignty of the nation. Provisions under Chapters IV and VI (which include Sections 17, 18, 38, 39, etc.) address terrorist acts, fundraising, membership, and support for terrorist organizations.
Section 43D(5) of the UAPA: This provision heightens the burden on the accused to secure bail if they are charged with terrorist activities. Courts must deny bail if there are “reasonable grounds for believing” that the charges are prima facie true.
“Bayath” (Oath of Allegiance): A pledge of loyalty or allegiance to a leader or cause. In the context of ISIS, acknowledging such an oath is often considered strong evidence of acceptance of the group’s violent ideology.
3D Printing of Weapons: This modern phenomenon involves using 3D printers to create firearms or weapon components. The Court noted that discussions on making guns through 3D printing, found in chat groups, further indicated an intent to arm or encourage violent acts.
Digital Evidence in Terror Cases: Courts increasingly rely on phone chats, encrypted messaging platforms, and social media data to confirm or refute allegations of recruitment, financing, and active support for terrorist organizations.

5. Conclusion

The Delhi High Court’s judgment in MD Heydaitullah v. National Investigation Agency illustrates the narrow channels for bail when an individual is allegedly engaged in active advocacy of terrorist causes under the UAPA. In reaffirming that ”mere possession” of extremist content is likely insufficient for conviction but ”active promotion and facilitation” will cross the threshold, the Court denied bail to the Appellant.

The decision has significance beyond the immediate case. It underscores the judiciary’s heightened vigilance where allegations of digital recruitment and radicalization are made. The threshold for bail under Section 43D(5) is high, and the Court concluded that the Appellant’s overt support—taking oaths to ISIS leadership, engaging in repeated fundraising, and discussing violent jihad—created a prima facie case that could not be ignored. This judgment thus serves as both a caution and a clear precedent: individuals who actively promote the agenda of proscribed organizations, even solely through online activities, will face the stringent standards of the UAPA.

Affirming “Active Advocacy” as the Threshold for Denying Bail under the UAPA