Image Courtesy:barandbench.com
On May 20, 2022, the Delhi High Court continued to hear the plea filed by Dr. Umar Khalid challenging the Trial Court’s order denying him bail in case involving charges under the Unlawful Activities (Prevention) Act (UAPA) where police have alleged a larger conspiracy behind the communal violence that broke out in North East Delhi in February 2020.
The hearing began before the court of Justice Siddharth Mridul and Justice Rajnish Bhatnagarwith the alleged speech made by Umar Khalid being played before the court once again on the directions of the division bench.
Pointing out a statement made by Khalid in his speech, Justice Bhatnagar reportedly asked the Senior Advocate TrideepPais, appearing for Khalid, “What is this Mr.Pais? Can you read that part? Speech says something else. Hindustan me sab changa naisi. Donald Trump ko ye napatachaljaaye…bharatmai Modi nangasihai. What is this? He is making the statement against PM. Some other words could have been used against the PM of India. He could have stopped at Bharat mai sab changa naisi. There could have been a purnviram (full stop) at changa si.”
Pais reportedly responded saying, “He could have but it is not incitement to violence. That doesn’t make it a crime. How is this terror or call of violence? In hindsight we could say anything. Please listen to the speech again. Please see the video. There is a stage. The audience sitting on chairs. A programme is prepared. People are sitting in orderly fashion. There is no chaos, no one is getting excited.”
Justice Bhatnagar reportedly remarked, “He claims to follow Mahatma Gandhi. Did Mahatma Gandhi use words like these in his speeches?”
However, referring to the past instances, Pais informed the Court how a sitting finance minister used the word napunsak(impotent)in a public meeting for his predecessor, thereby urging the Court to see the words with respect to the context in which they were used.
Justice Bhatnagar reportedly remarked, “So this is the democracy now?”
Previously, the Court had asked for specific meaning of the words like ‘revolution’, ‘krantikari’ and ‘inquilab zindabad’. Accordingly, Pais had submitted the relevant documents for the same. However, Justice Mridul reportedly retorted, “We know what the inquilab zindabad means. All of us are familiar with it. You did not use the word inquilab zindabad. You used inquilab in conjunction with krantikari. We want to know what you meant by that.”
Pais submitted that ‘inquilab’ means revolution but it seemed like the arguments and discussion was going in full circle as Justice Mridul reportedly remarked “The point is inquilab has a secondary meaning. No one can misconstrue the meaning of inquilab zindabad. The question is what he meant by inquilab.”
Moving on, Pais brought to the court’s attention to Prime Minister Narendra Modi’s tweet using the same word but the Court dismissed it stating that he was talking about an industrial revolution.
Pais finally submitted that that inquilab was used in context of discriminatory law and people standing against it and that by no stretch of imagination were the words inquilab, krantikari or revolution used as a call for violence.
As Pais continued to read out the meaning of the words, Justice Mridul interrupted him to ask, “Were you asking for renunciation of the government?” Counsel denied such claims and merely stated that he was only asking for the law to be called back which is also a form of revolution in a way. Pais further tried to place the meaning of the word in different context by relying on Pandit Nehru’s speech, Irfan Habib’s podcast, an article of The Hindu referring to Pandit Nehru and Balwant Singh case. Adding further he reportedly argued, “What I am submitting is that people who thought of revolution do not have to resort to violence.”
Justice Mridul reportedly remarked, “Please see what Maximilien Robespierre had to say about revolution. Yours is one perspective. Revolution has to be violent that is why we use the prefix ‘bloodless’ to refer to a peaceful revolution.”
Pais reportedly submitted, “All I am saying is if legal and democratic politics is allowed then revolution in its traditional meaning becomes superfluous. This is what Nehru said.”
Justice Mridul reportedly stated “All that is now missing is the Beatles’ song on revolution. There is a sher from Kaifi Azmi. He said, “Rahe na rind ye vaiz k bas ki baatnhi, tamamsheherhain do char das ki baatnahi.So the call to revolution does not have to affect the people immediately present. That is why we referred to Maximilian Robespeare. The very fact that Pandit Nehru believed revolution had become superfluous shows how it was completely opposite of change.”
While concluding the hearing, the Bench said that they would like to finish the hearing before the summer vacation and it being a special bench, they would be hearing the matter on a day-to-day basis from Monday, reported LiveLaw.
The matter has been listed on Monday.
Previous hearings
During the last hearing on May 6, the Bench had adjourned the matter on the grounds that it would be appropriate to await the outcome of the Supreme Court regarding the challenge to the constitutional validity of the offence of ‘Sedition’ under Section 124A of the Indian Penal Code before continuing with the present appeals.
On May 11, while hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the Indian Penal Code, the Supreme Court directed the Centre and State governments to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre and held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice be caused to accused.
It is during the hearing held on May 6 that Sharjeel Imam’s lawyer, Advocate Tanveer Ahmed Mir, moved a fresh appeal challenging the Trial Court order denying him bail in the Unlawful Activities (Prevention) Act (UAPA) case. Since Imam is the purported co-conspirator according to the prosecution’s allegations, the Court decided to hear both the appeals together. The Court also decided to hear another challenge made by Imam seeking bail in a case relating to the alleged inflammatory speeches made by him at the Aligarh Muslim University (AMU) and Jamia area in Delhi against the Citizen Amendment Act (CAA) in connection with FIR 22/2020.
The Court is set to hear the plea filed by Sharjeel Imam on May 26.
Courtroom exchange earlier in the case of Umar Khalid
(a) Arguments with respect to criticism of the government
Last month, while hearing the appeal filed by Umar Khalid against the Trial Court’s order denying him bail, Justice Rajnish Bhatnagar had asked Dr. Khalid’s lawyer, Senior Advocate TrideepPais, if it was appropriate to use the word “jumla” against the Prime Minister of India. Advocate Pais had reportedly submitted that criticism of the government is not a crime. Justice Bhatnagar further inquired about the word ‘changa’ used in context of the Prime Minister, to which Pais reportedly responded, “It is satire. Sab changa si was probably used by PM in a speech.”
According to LiveLaw, Advocate Pais further submitted, “Criticism of the government cannot become a crime. 583 days in prison with UAPA charges was not envisaged for a person who speaks against the government. We cannot become so intolerant. At this rate, people will not be able to speak.” However, according to Justice Bhatnagar, a line needs to be drawn for criticism. He reportedly remarked, “There has to be a Lakshman Rekha.”
Justice Mridual further enquired about the use of words ‘inquilab’ and ‘krantikari’. As per LiveLaw he stated, “He is invited to Amravati to deliver which he himself calls a krantikari and inquilabi speech. Your argument regarding free speech, nobody can have a question. Question is, did his speech and subsequent actions lead to the riots that happened? The live link with speech and other material gathered whether it led to incitement of violence? Nobody has qualms about free speech but what is the consequence of your employing these expressions, offensive as they evidently are. Did they incite the populous in Delhi to come out to streets? If they did even prima facie, are you guilty of UAPA sec. 13? That is the question before us.”
Pais reportedly submitted, “The speech in itself didn’t call to violence. No witness to violence of Delhi have said that I was incited by this. Only two witnesses cited to have heard this speech, they say they weren’t incited by the speech.”
(b) Arguments with respect to the invocation of UAPA
Claiming that invoking offences under UAPA in the FIR was a calculated move, Pais brought to the Court’s attention that initially only bailable offences were added to the FIR and non-bailable offences including UAPA was only added a later stage. As per LiveLaw, Pais argued, “This is a mala fide invocation (of UAPA) in order to just ensure that people don’t get bail. FIR isn’t worth the paper it’s written on.”
Advocate Pais further based his argument on the Indian jurisprudence citing the Kedarnath Singh case law arguing that the speech in question has no incitement as contemplated by the said judgement and the speech did not incite violence.
“The crowd was sitting, there was no call for violence. However, much we disagree with what the appellant said, it was by no means a speech that could come near sec. 124A of IPC, leave alone the offences of terror,” Pais said, as reported by LiveLaw.
(c) Arguments about contradictory witness statement relied upon by the Trial Court
Advocate Pais brought to light the contradictory statements made by the witnesses including the protected witnesses upon which forms an essential part of the reason for denying bail in the Trial Court’s order. He reportedly argued, “It flies in the face of each other. There are several witnesses like that. I will adhere to Watali and other judgments but i will show that on the face of it, chapter 4 offences are not made.”
As per LiveLawPais further submitted, “The offence of 124A or there being any reaction of speech in Delhi is not only unfounded, but unlikely and more than remote. The special court also didn’t find it. At best, beta statement where he says intention to do chakka jam, chakka jam in itself cannot be terror by any stretch of imagination.”
According to Justice Mridul the acts of co-conspirators can be attributable to Khalid as part of the said conspiracy. LiveLaw quoted him as saying, “This is the reason why case of Prosecution is that it was conspiracy between large no of conspirators. By himself he may not be able to give injaam to conspiracy, for that there have to be co-conspirators.”
Pais responded saying that the only common intention that comes across amongst the alleged co-conspirators was to conduct peaceful opposing CAA and nothing else. He said, “It can’t be that someone wakes up in November and spins a yarn about what my speech was about and half of it is wrong and can be termed as incitement. There has to be nexus between speech and violence in Delhi.”
As reported by LiveLaw, in opposition to the appeal, the Prosecution had earlier told the Court that the “narratives” sought to be created by Dr. Khalid cannot be looked into as his defence at the stage of bail. It was the Prosecution’s case that Dr. Khalid’s role should not be viewed in isolation as it is the case of conspiracy. The prosecution further relied upon the trial court’s order that dismissed bail pleas of co-accused Khalid Saifi and Shifa-ur-Rehman which demonstrates the extent of the alleged conspiracy and the role played by each conspirator.
Background
Dr. Khalid was arrested by the Delhi Police in September 2020, under the Unlawful Activities (Prevention) Act (UAPA), on the charge of larger conspiracy to allegedly unleash violence to defame the Indian government during a visit by former US President Donald Trump. While Dr. Khalid was granted bail in the matter concerning Penal Code and Arms Act charges, he continues to remain in custody in connection with the Delhi Riots larger ‘conspiracy case’ concerning UAPA charges under FIR No. 59 of 2020.
While granting bail concerning the IPC & Arms Act charges, the Additional Sessions Judge Vinod Yadav recognised that probability of a lengthy trial in the said matter. The court observed, “The applicant cannot be made to incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob have to be identified and arrested in the matter.” It came down heavily on the State for providing inadequate evidence in this case, that is based on the statement provided by a prosecution witness. The court found the statement provided by the witness to be insignificant material and couldn’t comprehend how a lofty claim of conspiracy could be inferred based on it.
Importantly, the court noted that the material against Khalid was “sketchy” and that he cannot be incarcerated indefinitely on the basis of such evidence. “The applicant cannot be permitted to remain behind bars in this case on the basis of such sketchy material against him,” read the order. The judge also held that neither was Dr. Khalid present at the crime scene on the day when communal clashes broke out last year, nor was he captured in any CCTV footage/viral video. Further, the court also said that “…neither any independent witness nor any police witness has identified the applicant to be present at the scene of crime. Prima facie, the applicant appears to have been roped in the matter merely on the basis of his own disclosure statement and disclosure statement of co-accused Tahir Hussain.”
Under UAPA, Dr. Khalid has been charged under sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act) and 18 (Punishment for conspiracy). Under UAPA, an accused person shall not be released on bail if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The Delhi court made out a prima facie case merely on the basis of implausible, contradictory and vague statements made by the witnesses and gave no regards whatsoever to the fact that:
(a) Dr. Khalid had not given any public calls to incite violence;
(b) there is no evidence on record that proves Dr. Khalid’s participation in funding or transporting arms nor were they recovered from him,
(c) Dr. Khalid was not even present in Delhi when the riots took place.
While Dr. Umar Khalid languishes behind bars and is vilified as a ‘Jihadi’ for responding to hate with love, there are hate offenders out there who are let off with a mild rap on the wrist.
Related:
Delhi HC adjourns hearings in bail pleas of Umar Khalid and Sharjeel Imam
Umar Khalid’s speech prima facie not acceptable, obnoxious: Delhi HC
Dr. Umar Khalid: A human rights defender, failed by the judiciary
Sketchy material against Umar Khalid, Delhi court grants bail
Protest was secular, chargesheet is communal: Dr. Umar Khalid’s counsel
Umar Khalid bail hearing: Counsel points out “cooked up” witnesses
Chargesheet against me looks like a film script: Umar Khalid to court
Indian judiciary on granting bail: Different strokes for different folks?