Protests were against unjust law, protesting is not a terrorist activity: Umar Khalid

Delhi High Court
Image Courtesy:english.madhyamam.com

On May 23, 2022, the Delhi High Court continued to hear the arguments by Dr. Umar Khalid who is appealing against the Trial Court’s order denying him bail in case involving the alleged larger conspiracy behind the communal violence that broke out in North East Delhi in February 2020. In this case Dr. Khalid has been charged under the Unlawful Activities (Prevention) Act (UAP), a draconian anti-terrorism legislation that has been repeatedly used to target political dissenters by the regime.

A division bench comprising of Justices Sidhartha Mridul and Rajnish Bhatnagar continued to hear the plea today. After extensively arguing on Friday, May 20, that the words such as ‘Revolution’, ‘Krantikari’ and ‘Inquilab’ used in Khalid’s Amravati Speech are not a crime and do not call for violence, Senior Advocate Trideep Pais, appearing for Dr. Khalid argued further today against the charges against him, the allegations of criminal conspiracy to instigate violence, and explained why it is not a terrorist act to protest.

At the outset Pais denied all allegations and incidents cited against him to qualify as terrorist activities. He denied taking part in any violent protest and claimed that there wasn’t any material on record to suggest otherwise. Even though he admitted that Khalid was part of two WhatsApp groups, but he pointed out that that there are no accusations of sending any violence instigating message on the said group. He claimed that the material against him is ex post facto- “Ex post facto registration of FIRs and ex post facto arrests.”

Arguments on Terrorist Act

Pais denied that the protests were a terrorist act as they were only directed against an unjust law. Pais reportedly asked, “Is a mere statement enough to bring the charge of UAPA? Can the protest itself be a terror?”

He contended that Section 34D (3) of UAPA does not apply to Khalid instead triple test does. He claimed that the Special Judge of the lower court attributed the planning of chakka jam to terrorist act. He reportedly argued, “The protests in Delhi against CAA have been called a terrorist act. The judge says these are acts threatening the unity and integrity of India. Who are we pointing this at? These are the people who said CAA is discriminatory; they want to be part of India.”

He argued that the protests did not perpetrate any violence, as contemplated under Section 15 of TADA [The Terrorist and Disruptive Activities (Prevention) Act, 1987] which defines “Terrorist Act”. Referring to a judgment relating to TADA, he explained the meaning of “terrorist” reportedly stating, “Terrorism does not merely arise by causing disturbance of law and order or of public order.” He reportedly read from the judgment, “Terrorism is an act that travels beyond the capacity of ordinary law agency to tackle under ordinary penal law. Terrorism is an attempt to acquire power or control by intimidation and cause fear in large section of people. It is not the intention of legislature that every criminal should be tried under TADA. It is only where the ramifications fall out frontiers of ordinary criminal activity…using bombs, dynamite, lethal weapons, etc. Every terrorist may be a criminal but not every criminal is a terrorist. TADA cannot be invoked just to set in more stringent provisions.” He reportedly argues, “A riots in a normal sense or a protest gone wrong or a violence that follows police lathicharge or fights between two communities cannot automatically be given this…”

While referring to Kartar Singh vs. State of Punjab where Supreme Court upheld the constitutional validity of TADA, Pais read out, “Terrorism is a grave emergent situation created by external forces or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic polity.”

He thereby reportedly submitted, “The protests were against an unjust law by persons who want to be a part of the country. The raison d’etre of the the protest was a cry to belong to India. It reinforced the sovereignty of country and they were against a law that did not allow them to belong to this country. It is in no way an act against the sovereign.”

Courtroom exchange about protests instilling fear

Justice Mridul reportedly commented, “As per precedents, terrorism is an act done with a view to disturb the even tempo of society, create a sense of fear in mind of a section of society. In the present charge sheet, is it the case of prosecution that it instilled fear in minds of a particular section of the society?”

Pais reportedly replied, “No. We need to see who the victims are. They are the family members of people who are accused.”

Justice Mridul then asked, “Is it your case that all those who participated in the protests cannot fall in the category of victims? Was there fear instilled in the minds of these victims?”

Pais contended that it would depend on whether perpetraters individually or in connection with each other are responsible for it. Justice Mridul reframed the question asking, “Was there a sense of fear created in the aftermath of the protest or was there not?” Denying such insinuations, Pais submitted, “This chargesheet doesn’t reflect it and qua me, absolutely not.”

Seeking further clarification, Justice Mridul remarks, “You are an accused, not victim. I’m asking qua victims, was there fear?”

Standing his ground, Pais repeats, “Chargesheet doesn’t reflect it.” Justice Mridul then asked, “So your case is that there was a sense of insecurity instilled in public but you had nothing to do with it?”

Pais reportedly replied, “The charge sheet doesn’t concern with victims. It concerns alleged perpetrators and it is to be seen if there is sufficient material against me.” Justice Mridul confirmed, “But sense of fear was there? When Pais replied that the fear wasn’t of that gravity, Justice Mridul agreed with him and stated, “We agree with you, even a targeted murder can instill insecurity.”

Justice Mridul agreed with Pais as he highlighted the fact that the lines attributing communal character are put into the chargesheet to create hype without any basis or witness. He remarked, “I agree with you. It is verbose.”

Connection with Sharjeel Imam and Whatsapp groups

Pais denied allegations against him that the group created by Sharjeel Imam was formed on directions of Umar Khalid. He reportedly stated, “This is without any substance. There is no statement by anybody that I directed him to create this group. There is no communication between me and him. At best we have been in just one meeting. Not a whisper of me deleted or formatted my chats. Even Imam’s phone has been taken.” Pais read out chats of Sharjeel Imam to show that it was started on directions of Khalid. That connection has been drawn through whatsapp groups only and there are judgments that say the group administrator cannot be held accountable for offence committed by a member. Here even a mere membership has been made an offence.”

He reportedly added, “It takes a statement and exaggerates it into a terrorist act. This leap of faith has absolutely no basis.”

With respect to Jantar Mantar, Pais submitted that people against whom active roles of preparing protest had been given were deliberately left out. As Pais denied being part of a whatsapp group called ‘Core Members of Muslim Students of JNU’, Justice Mridul admitted, “In any event it is not an offence to be a member of a Whatsapp group.”

Pais also brought to the Court’s attention how the lower court had misinterpreted statements by Tahira Dawood at a meeting inorder and wrongly drew a connection with Khalid. He pointed various other discrepancies in witness statements made by Parvez Alam and Purushottam Sharma, relied upon by the trial court in its order denying bail.

When Justice Mridual raised a concern that contrary to his arguments, the call detail records show his presence at Jantar Mantar protest site, Pais clarified that Khalid was at Jantar Mantar on 7th and not on 10th. He denied any connection with Sharjeel Imam’s speech on December 13 wherein he criticised the fact that the protests are sought to be inclusive and promotes secularism. He stated that Khalid completely disagreed with the speech and claimed that he was being lumped with the person who calls for a deeply communal protest against CAA.

On an earlier occasion, also Pais had made arguments about the contradictory witness statements relied upon by the Trial court. He had also addressed arguments with respect to criticism of the government and invocation of UAPA.

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,

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.