Political dissenter Dr. Umar Khalid and Sharjeel Imam will have to stay behind bars a bit longer as the Delhi High Court, on May 6, further adjourned hearings in both their bail pleas. A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar have now listed the matter to be heard on May 19 for Umar Khalid and May 26 for Sharjeel Imam.
Both, Dr. Khalid and Imam, have been implicated in the larger conspiracy behind the North East Delhi violence of February 2020 and had been previously denied bail by the trial court.
During the last hearing, 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.
It is during this hearing 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.
During the course of today’s hearing, Advocate Tanveer Ahmed Mir appearing for Sharjeel Imam, relied on an order passed by the Allahabad HC granting bail in a case concerning one of the speeches forming part of the FIR in question. Accordingly, Justice Mridul reportedly said, “If you’re saying that order passed by Allahabad HC granting you bail, if you’re pressing that, and you say it covers the present appeal, then you have to show us how and what were the allegations in the FIR?”
According to LiveLaw, while adjourning the matter, the Court ordered, “In the meantime, parties are at liberty to place on record all docs as may be relevant for adjudication of the appeal within one week from today with advance copy to other side.”
Courtroom exchange earlier in the case of Umar Khalid
(a) Arguments with respect to criticism of the government
Earlier 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 Trideep Pais, 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 LiveLaw Pais 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.
Trial Court’s Order
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.
Grounds for denying bail as stated by the Court
Dr.Umar Khalid finds a recurring “mention” from the beginning of the conspiracy till the riots.
He is member of the Whatsapp groups of Muslim students of Jawaharlal Nehru University (JNU).
He participated in various meetingsin December 2019 (on December 7, 8, 13 and 26) and also in January 2020 (January 8, 23-24) as well as on February 2, 2020.
He is member of the DPSG Whatsappgroup and attended meeting at Indian Social Institute (ISI) on December 26, 2019
He gave reference to Mr. Donald Trump President of USA in his Amravati Speech on February 17, 2020
He was mentioned in the flurry of calls that happened post riots.
He was instrumental in creation of the Jamia Coordination Committee (JCC).
Statements of numerous witnesses including protected public witnesses highlighting the incriminating material against the accused Umar Khalid.
Since the membership of certain Whatsapp groups and participation in various meetings was not enough, the Court only relied on vague, contradictory and implausible witness statements without undertaking any further analysis despite acknowledging the fact that there are some inconsistencies in the statements of some protected witness.
Taking into consideration the proceedings of Khalid’s bail hearings and the remarks made by the Court in this context, Gautam Bhatia has rightly stated in his article titled ‘Unfreedom of Speech’ for Indian Express: “An enthusiastic political speech, a fiery political speech, a political speech that takes aim at opponents through satire, parody, or even by generating a sense of outrage- these may offend people’s sensibilities and ideas of civility, taste, and good behaviour- but these are not reasons to deprive an individual of their freedom. As the guardian of civil rights, the Court bears the burden of ensuring that the Lakshman Rekha does not turn into a weapon to permanently silence democratic dissent”.