Delhi Violence: Ishrat Jahan granted bail in wider conspiracy case

Image Courtesy:theleaflet.in

On March 14, 2022, the Karkadooma Sessions Court granted bail to lawyer-activist Ishrat Jahan after 25 months of incarceration. Additional Sessions Judge Amitabh Rawat had reserved orders in Jahan’s bail plea in February this year after extensive arguments had been made by Jahan’s counsel Pradeep Teotia. Special Public Prosecutor Amit Prasad appeared for prosecution.

Ishrat Jahan’s bail application was granted in FIR 59/2020 which alleges a larger conspiracy in the Delhi violence that broke out in February 2020. Jahan was arrested on February 26, 2020, and has been held in custody since then. This was a case under the controversial Unlawful Practices (Prevention) Act (UAPA), and was the second case slammed against dissenters and activists targeted in the case. It is noteworthy that Jahan,a Congress councillor, had vociferously protested the Citizenship Amendment Act (CAA)and was active in leading the protest at Khureji, Delhi.

The bail order imposes the following conditions:

1. The accused shall neither leave the jurisdiction of NCT of Delhi without prior permission of the court nor shall she indulge in any kind of criminal activity;
2. She shall also not tamper with any evidence or contact any witness;
3. She will cooperate in the investigation and shall not indulge in any activity influencing the investigation;
4. She shall attend the court on every date of hearing or as directed by court;
5. She will not indulge in any activities for which she is investigated/tried during the period of bail

Brief background of the case

Ishrat was arrested initially on February 26, 2020, on charges of “inciting violence, rioting and attempt to murder” under the Indian Penal Code. After spending a month in judicial custody, Ishrat along with four others were granted bail by Additional Sessions Judge Manjusha Wadhwa on March 21, 2020. The court had noted that the role assigned to Ishrat is that she incited the crowd to remain present at the protest spot as well as raised slogans of freedom, however, no overt act had been imputed to her regarding taking law into her own hands. 

On the same day, she was re-arrested under UAPA charges and has remained in jail since then. For a brief period of 10 days, she was released on interim bail on account of her wedding in June 2020. Ishrat had moved for interim bail in November, which had been then rejected by the Delhi Sessions Court.

In December, Ishrat moved an urgent application before the Sessions court alleging harassment and beating from her fellow inmates inside Mandoli jail. The court directed the Jail Superintendent to ensure Ishrat’s safety and security, and also asked the authorities to file a report on this matter on December 22, 2020, accepting that Jahan fears for her life.

Making the argument on Ishrat Jahan’s behalf, advocate Teotia had added, “They have created a fear amongst people. She has been a lawyer. She was a young political person. She has a brilliant acumen. I was victorious from a ward where Muslims were less in number. Both the sects had given vote to her. No Muslim had even won from the said ward.” He further said, “She was a popular lady. They have no single iota of evidence regarding her involvement in the conspiracy. There has to be something.”

Arguments put forth by the prosecution against Ishrat Jahan’s bail

1. The prosecution argued that Ishrat’s role in the conspiracy must be taken together with the other accused persons and not individually.
2. A connection is drawn between the Anti-CAA protests in Khureji with the Communal riots in North- East Delhi stating that the creation of 23 protest sites were not organic in nature rather they were planned.
3. There have also been repeated attempts to draw a connection between Ishrat Jahan and other accused persons in the Delhi riots on the basis of 1097 calls and SMSs between Ishrat and Ammanullah
4. The prosecution alleges that the sole purpose of the Anti-CAA protests and Delhi riots was to defame the government internationally as also destabilise it.
5. Ishrat Jahan is alleged to be a contributor to the Delhi riots for making provocative speeches in Khureji.
6. The prosecution also alleges that the suspicious funds in Ishrat Jahan’s account were used for protests and procuring weapons for the riots.
7. The prosecution alleges that Ishrat Jahan is a co-conspirator and insinuates her being linked to organisations or incriminating Whatsapp group which plays a role in the entire conspiracy such as Muslim Students of JNU (MSJ) or Jamia Coordination Committee (JCC) or the four Whatsapp groups created by JCC, Pinjra Tod, Students of Jamia (SOJ) or Alumni Association of Jamia Milia (AAJMI) or Delhi Protest Support Group (DPSG).

Arguments put forth in the favour of Ishrat Jahan’s bail

1. The counsel stated that arrest of the accused in present FIR leads to “double jeopardy” because of previous FIR No. 44/2020.
2. Then the counsel stated that Section 43D UAPA only puts restrictions but is not an absolute bar to the grant of bail and there is no cogent material to prima facie disclose commission of a terrorist act or conspiracy or an act preparatory to the commission of a terrorist act.
3. The counsel also alleged that Ishrat Jahan has no deadly weapon or arms, reading material propagating violence were from her.
4. The counsel claimed that Ishrat Jahan has been falsely implicated in this case out of political vendetta.
5. The counsel dismisses that Jahan was a member of any banned group or organization or any Whatsapp group or a terrorist organisation that caused the violence and there is no video footage or electronic data or recoveries to prove that she incited the public or caused “terror” as claimed by the prosecution.Instead, the counsel claims that the video footages played in the court Jahan can be seen requesting people to remain peaceful and abide by the law.
6. The counsel also turns down the allegations made about Jahan’s connection with Amanatullah Khan to form Jamia Awareness Campaign Team (JACT).The counsel states that only 132 calls have been recorded to be made between Amanatullah and Ishrat Jahan as opposed to the prosecution’s allegations of 1097 calls and messages. It further states that out of those calls, 29 calls are zero second calls and there is no proof of incriminating messages that could establish conspiracy regarding riots.
7. The counsel denies prosecution claims about connections between Ishrat and Devangana as there is no evidence to establish the same. The only chat, the counsel admitted, is between Jahan and co-accused Tasleem, which are not ‘incriminatory’.
8. The counsel argues that the accused had only conducted peaceful protest against the CAA at Khureji site which was not banned and where no riots took place.
9. The counsel also claimed discrepancies in the witnesses produced by the prosecution and stated that they were either false or cannot be trusted.
10. Regarding Ishrat Jahan’s bank account, the counsel argued that her passbook indicates the same of pattern of expenditure as it was before the period in question.
11. The counsel also contended that even when Ishrat was out on interim bail in June 2020, she did not influence any witness or hamper the investigation
12. It was also argued that the Right to Protest is a fundamental right guaranteed under the Constitution of India and that no complaint of any kind of criminal activity had been moved against any of the anti-CAA protestors, besides her.

Grounds for granting bail

Quoting section 43D of UAPA, the Court stated that as per the section, there should be reasonable grounds in the court’s opinion for believing that accusation against the accused is prima facie true. Therefore, apart from the general conspiracy and applicability of UAPA, the Court took into consideration the material against Ishrat Jahan and drew the following conclusions:

1. Ishrat Jahan is not the one who created the idea of chakka-jam;
2. She is not a member of any of the organizations or incriminating Whatsapp group which plays a role in the entire conspiracy;
3. She is not a member of Muslim Students of JNU (MSJ) or Jamia Coordination Committee (JCC) or any of the four Whatsapp groups created by JCC, or Pinjra Tod, or Students of Jamia (SOJ) or Alumni Association of Jamia Milia (AAJMI) or DPSG;
4. Ishrat Jahan was only involved in the protest site at Khureji, Delhi which is away from North-East Delhi where the horrendous riots took place in February 2020 and the two places are not even contiguous;
5. Even though the Court accepts that she had connectivity with the other accused persons, it considers the fact that she was neither physically present in North-East Delhi for riots nor was she part of any group, organization or Whatsapp groups or her name cropped in flurry of calls or in any CCTV footage or in any of the conspiratorial meetings;

Therefore, taking a wide view of Ishrat Jahan’s role in the entire conspiracy, the court allowed the bail application despite the embargoes contained in Cr.PC and UAPA. The Court briefly mentionedthatthe allegations of her provocative speeches at Khurejicontributing to the violence in North-East Delhi and the allegations of suspicious funds in her account used for the purpose of protest would be dealt in the due course of the court proceedings.

The Court’s order may be read here:

Why is UAPA known as a draconian statute?

The Unlawful Activities (Prevention) Act (UAPA), which after amendments made in 2004 and 2008, introduced acts of terrorism, funding terrorist activity and conspiracy to commit acts of terror into its ambit (the law dates back to the 1960s), has been regularly abused since then, often to incarcerate politically inconvenient voices, more especially so by the executive in the past seven years.

Ishrat Jahan was charged under the draconian UAPA. Sections 13 (Punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act) and 18 (punishment for conspiracy) of the UAPA were also added against her by the Delhi Police.

The main reason why UAPA is known as a draconian statute is because the proviso of Section 43-D of the Act states that if it is not possible to complete the investigation within the stipulated period of 90 days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 90 days, extend the period upto 180 days.

Hardships faced by Ishrat Jahan in Jail

In November 2020, when Ishrat moved for interim bail which was rejected by the Delhi Sessions Court, Ishrat’s lawyers had argued that in October, 2020 she had taken a fall in the bathroom where she sustained spinal injuries. She was already suffering from spinal ailments but since she was in jail, she had not been receiving any proper treatment and that aggravated her back pain. Jahan’s migraine was also getting out of hand and in addition to this, she also developed high blood pressure and anxiety. Her lawyers had argued that she is a law-abiding citizen and that due to Covid-19, she should be granted bail.

The State objected to her bail plea and told the court that Jahan had tested negative for Covid-19 and that the jails were being regularly sanitised. They also submitted that the situation was “totally under control” and that she had been receiving proper treatment in jail for her “minor health issues”.

Additional Sessions Judge, Amitabh Rawat, who was hearing her case, agreed with the State and found no cogent reason to enlarge her on interim bail on medical grounds. He said, “the applicant is complaining of cervical, spine injury/lower back pain, migraine and high blood pressure. There is no medical emergency shown by the applicant. Moreover, as per the report of the Jail Superintendent, Tihar Jail, all the necessary protocols regarding Covid-19 related precautions are being taken and the situation is totally under control. There is no Covid scare inside jail. The applicant is also being given proper treatment for her minor health issues and her condition is stable.”

In December 2020, Ishrat moved an urgent application before the Sessions court alleging harassment and beating from her fellow inmates inside Mandoli jail. Her lawyer Pradeep Teotia contended that this was not one isolated incident and that she had been facing regular discrimination and beatings at the hands of other inmates.Her family had alleged that Ishrat had been attacked, her clothes torn, head smashed against the wall several times. Her mental, emotional and physical health had been affected under such circumstances.

According to an Indian Express report, Ishrat had told the court that this was the second incident in a month. “In the morning today at 6.30, they (inmates) beat me badly and abused me verbally. One of the inmates even slit her hand so I’m punished on a false complaint. Fortunately, jail officials did not listen to them. I have given a written complaint. They keep calling me a terrorist. They also demanded money from me in the canteen,” she was quoted saying by the IE.

ASJ Rawat had orally observed, “She (Jahan) seems to be in a state of utter fear. Please talk to her immediately and understand the situation. File a detailed report about steps taken to allay her apprehension and fear. Take all necessary steps, take immediate steps. I don’t want to hear that the accused was further harassed by her inmates or anybody else because she complained. I do not want to hear that the present accused is harmed in any way,” as per the IE report.

The other accused in the Delhi Riots case had also been facing similar discrimination inside jails, recorded Judge Rawat. Further, the court directed the Jail Superintendent to ensure Ishrat’s safety and security and also asked the authorities to file a report on this matter on December 22, 2020, accepting that Jahan is fearful of her life.

According to her sister Sarwer, Ishrat had been “very active and healthy all throughout” however the “grave trauma and stress of this case being falsely put on her she has become a patient of high BP and other psychological health related issues inside the jail.” Ishrat had been asking for medicines, however, her sister says all she had been given in jailwas a “a paracetamol for all issues.” Her sister also stated that she was confined to the barrack due to the Covid-19 restrictions inside the prison and there was no ‘time out’ given even for an hour in 24 hours to step outside for fresh air. Her family had feared that the isolationand lack of movement would aggravate Ishrat’s health problems. Sarwer shared that even in the peak summer, the cell had coolers placed, which were ineffective as they had no water supply. The drinking water dispensers were kept in the sun, and inmates had no access to cool water in the summer.

Not one to be sitting idle even under trying circumstances, Ishrat, had started teaching yoga to women lodged with her in the barrack. She spent her whole day doing yoga, reading a few books and the Quran. Though there have been many moments, when tears have flown as freely from her eyes, as the prayers did from her lips. For Ishrat, as it is for all political detainees, the time she spent in jail was a massive punishment in itself. Outside the jail, her family, and an extended family of friends and well-wishers who underwent a similar trauma. Her widowed mother, her sister, and her husband now release a sigh of relief as she has been granted bail after the 25 months long wait.

Related:

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After 15 months in jail, Ishrat Jahan awaits bail: Delhi Violence Case 
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