Angry banners do not fly against the sky.

People do not walk across cities, rallying voices

Against the incarceration of a young man.

They have hired clever masons to build walls around him.

But he spreads outside those walls.

They talk about him in quiet corners

And it spreads like a whisper that cannot be silenced.

“Where is he?” they ask,

They who have made him prisoner to their fears.

“Why do we hear his voice beneath our throne

And in the quietness of our homes?”

He has become the voice among voices,

He has become the anger that lurks among the  silenced,

He has become the love that lingers beyond fear,

He has become the hope that teeters on the edge of a prayer.

He has become larger than his name, Umar Khalid.

He has multiplied beyond a number in a prison.

He has entered into the crevices of our remembering.

He has become the unease of our present.

Those walls are searching for him.

They were built to enclose him.

But he is no longer within them.

He is prowling in the streets,

He is trespassing into dreams,

He is stoking the embers of love

In the winter of hate.

(The author of this poem is from Mangalore University)

The post For Umar Khalid appeared first on SabrangIndia.

O… foot soldiers of night

do you really believe

that you prosecuted the dawn

By imprisoning the ray of light…

listen, you knights of night…

Umar Khalid is

a north star

that brightens the dark sky

a last sigh of enduring pain

the mother suffers

while giving birth to a new life

a lamp inside

ensuring

the engulfing darkness

won’t seep inside of us too

a boundary line of truth

to ensure

lies don’t trespass

Hence

to remember Umar Khalid

is to continue

the fight of memory

against forgetfulness

hankering for love

in the times of

organised hate.

ethical and eternal vigilance

amidst helplessness, despair and delusion

Of course…

Umar is a terrorist

against the Empire of lies

an anti-national

who planted a bomb

of love

in the fort of hatred

a conspirator

who hid a spark of truth

in a box full of deceit

O..knight of nights

write down my name too…

write it next to that of Umar

in your list of terrorists

my name is Shivasundar

Umar and Me

share the same ancestry

my address: Free Universe

– Shivasundar (Translated from Kannada by Samvartha Sahil )

The post Umar Khalid – The Inquliabi appeared first on SabrangIndia.

Khalid, an activist and former student of Jawaharlal Nehru University, is accused of being one of the “masterminds” of the conspiracy to instigate violence during the 2020 riots in the aftermath of the anti-Citizenship Amendment Act (CAA) protests. He was arrested on September 13, 2020, under the controversial anti-terrorist law Unlawful Activities Prevention Act, 1967 (UAPA). The solidarity event with Khalid screened ‘Prisoner No. 626710 is Present’, a documentary by noted filmmaker Lalit Vachani chronicling Khalid’s political journey, the mainstream media’s vilification of the activist since 2016, and the experiences of his close peers as he remains behind the bar. Other screenings of the film were held on the same day at Delhi’s Jawaharlal Nehru University, and Ashoka University. Solidarity was also extended from beyond India’s borders as the Oxford South Asian Society at the University of Oxford also held the film’s screening. Between September 13 and 15, dozens of screenings of the film are being held at different solidarity events across India, including in Kolkata, Mumbai, Karnataka, and Kerala.

“The film screenings across the country were held to mark four years since Umar’s arrest, and the injustice he and other anti-CAA activists are facing as they are not even afforded a hearing in courts even while rapists and murderers are allowed bail and parole by the judiciary,” said Apeksha Priyadarshini, a JNU alumna, political activist, and friend of Khalid’s.

On September 13, people took to social media platforms asking for Khalid’s release and a fair trial. Actor Swara Bhasker posted on X saying, “Today marks 4 years of the incarceration of #UmarKhalid without bail, trial or crime. This is a travesty in a country supposed to be a democracy. This is a shame and an embarrassing testimony of our justice system.”

In Vachani’s documentary, writer and art curator Shuddhabrata Sengupta and Khalid’s partner and researcher Banojyotsna Lahiri say that the activist addressed many anti-CAA protest meets before the riots took place and always spoke of upholding the Constitution and peaceful protests. However, the Indian authorities blamed the largely public and peaceful anti-CAA protests for causing the riots, while blatantly ignoring inflammatory speeches given by Bharatiya Janata Party leaders and right-wing personalities in the same period.

With clips of TV news, Khalid’s speeches, and his interviews, the film also delves into how a large section of the news media is targetedly portrayed Khalid as a “terrorist” since the 2016 JNU protests, with one news channel going on to make an unsubstabtiated claim about Khalid’s association with terror outfit Jaish-e-Mohammad.

Shuddhabrata Sengupta, who was interviewed for the documentary, spoke at the discussion after the screening. He pointed out how among the three student activists arrested in 2016 under sedition charges, Khalid was especially persecuted for his Muslim identity. Not surprisingly a murder attempt was made on Khalid in 2018 outside the Constitution Club. However, a Delhi court discharged the two men who allegedly attacked Khalid. The film traces how the continued vilification of the young Muslim activist in media culminated in him being charged with the UAPA in the Delhi riots case.

Priyadarshini, one of the organisers of the event held in Delhi, told NewsClick, “⁠The film is an important documentation, not just of Umar’s journey but also of our times. It delves into the details of the events as they transpired in 2020, and unravels the real conspiracy behind the Delhi violence, and why these activists have been blamed for it. It is also deeply personal because it highlights why the continuing incarceration of an activist and human being like Umar Khalid is such a tragic loss for this country.”

“The way mainstream media portrays him is nothing new anymore. But what feels outrageous is that those who actually incited the violence continue to roam free without any consequences. Real justice will not just be the freedom of Umar, Sharjeel [Imam], Gulfisha [Fatima], Khalid [Saifi] and others, but also that the real perpetrators of the Delhi violence are punished for their crimes,” she added.

Prisoner of Conscience and Absence

Underlining the solitary experience of an intellectual and activist in prison, and her own experience as Khalid’s long-time friend, Priyadarshini said, “⁠It is not just this separation which is painful. It is also knowing you cannot offer him any respite from this isolation that makes you feel helpless sometimes.”

Khalid’s another old friend from his JNU days, Anirban Bhattacharya, who moderated the discussion after the film screening at Jawahar Bhawan, said, “One of the biggest parts of the punishment is Umar not being able to have meaningful conversations with likeminded people,” adding that Khalid loves to talk. He mentioned that Khalid keeps himself company with books sent to him in Tihar Jail by his friends and other people and newspapers to keep in touch with the world.

When asked how the imprisoned activist is dealing with loneliness for so long, Banojyotsna Lahiri, who visits him in prison often, said, “He is coping because there is no other option. We have been pushed into this situation, but it’s part of the fight. The fight against CAA continues. He is surviving; that is how he is coping.”

Speaking about hopes of him being released on bail, Lahiri said, “If there is no date, what’s the point speculating?” She added, “It’s a robbery of basic liberty.”

“All the youth were on the streets to remind people that political prisoners have been suffering since 1929. So far, the trial has not started, and there is no discussion on whether they are guilty. Only bail applications have been heard, and the next hearing is on October 9th,” Lahiri said at the event.

Speaking on whether Sengupta feels hopeless about the repeated denial of Khalid’s bail applications, he said, “It is my responsibility to keep hope alive, whether bail happens or not. At every hearing, we hope it comes through. If we leave hope, it will crush the hopes of those inside the prison.”

In February 2020, communal violence erupted in northeast Delhi amid protests against CAA. Over four years later, the case against activists accused of planning these riots remains untried. The Delhi police filed charges against 18 individuals, 16 of whom are Muslim. Twelve of the accused have been jailed without trial for over four years.

Khalid’s peers point out that those unable to get bail in the case are also Muslims. Khalid, accused of delivering an inflammatory speech in Amravati before the riots, has had multiple bail applications rejected, only receiving a week’s interim bail in December 2022 for his sister’s wedding.

In June 2021, the Delhi High Court granted bail to three co-accused student activists, criticizing the state for blurring the line between protest and terrorism. Since then, judges have dismissed at least 60 Delhi riots cases, according to a recent Article 14 report.

Aritry Das is a freelance journalist.

Courtesy: Newsclick

The post Jailed Without Trial: Umar Khalid’s 4-Year Ordeal Ignites Solidarity appeared first on SabrangIndia.

When the dry, deforested, deserted planet and its toxified climate are hitting back at us with one of the most morbid and cruel heat waves, then weather does become a pertinent issue of conversation, even concern.

I inquired about the heat situation inside the prison from Umar, with the same helplessness and apprehension as I had inquired about the COVID situation two years ago.

He grinned as usual. “I have never faced anything like this,” he said, almost chuckling. His grin becomes intolerable in such situations. I get angry, and he seems to enjoy that.

“No, seriously. This is my fourth summer in prison, but the heat this time is unbearable. I have never witnessed anything like this in my life. In fact, older inmates say they haven’t ever experienced such heat wave,” he said.

If you are still reading this and wondering who I am or who I am talking to, it really doesn’t matter.

This is about the prison conditions of Tihar in Delhi and the heat wave that is severely affecting young and old inmates.

The convicts, the undertrials, the implicated, or the falsely accused ones are all languishing right now in the heat, along with their unfreedom. It’s the same cruel condition that is slowly burning lives within prison walls.

Just for your information, I was talking to Umar Khalid, my soulmate, who has been lodged in Tihar since 2020. Umar was implicated by the Delhi police as a mastermind of the Delhi riots and booked in two cases related to the riots. In one case, he was not only given bail but was eventually discharged. Judges who have heard the other case under the most draconian Unlawful Activities Prevention Act (UAPA) refuse to grant him and many of his other co-accused bail. However, the trial of this case has not even commenced after four years.

Umar continued, “Since our cells are open in front with bars, waves of hot wind keep whiplashing inside. We try to put up sheets and cover the bars, but that’s hardly a cover. And you expect the heat in the daytime, but at night, when the weather doesn’t change even after sundown, it almost feels like a betrayal.”

And he grinned again.

“The ceiling is so high that the fan almost has a perfunctory presence. And they don’t allow us to use coolers. They let us use blankets and quilts in winter but no coolers in the summer. Not even in this heat. But then the Great Indian Jugaad happens. I keep sprinkling water on the sheet that hangs on the bars, on my bed, on the floor, literally everywhere. My chakki (cell) often becomes wet and muddy. But the water dries up quickly. Much quicker than you can imagine. But the water therapy sometimes runs dry when there is a water crisis.”, he casually added.

I now tread the most uncomfortable part of the conversation.

“Are people falling sick?”

“Yes”, he said, “people around me are falling sick. They are suffering from various ailments, especially older people. One person also died. An old man. He dropped dead, possibly because of the heat, I am not sure. No one is. But everyone suspects it’s the heat that killed him.”

I can feel my anxiety rising, but I try to calm down.

“Are you alright? Do you feel any discomfort?”

“I was feeling cramps in my legs yesterday. All of us are drowsy throughout the day because we hardly get any sleep these days. That’s all for now,” he said calmly.

“Umar, please keep drinking plenty of water, but also go to the OPD and tell the doctor about these cramps. Your sodium-potassium levels might have gotten imbalanced.”

I try to hide my panic (and my anger, my frustration and helplessness) yet again. “You need to see a doctor and also get on record your discomforts.”

“This heat is indeed unprecedented,” I said. “I had read on the news that bats were dropping dead from trees.”

“Yes, earlier, there used to be a lot of birds that came to our prison premises. The early mornings were filled with their chirpings. Birds hardly come these days, since the heat wave started. I wonder what has happened to them,”  he said.

Courtesy: Article 14

The post A Conversation With Umar Khalid That Burned Me appeared first on SabrangIndia.

On May 28, Shahdara Sessions Court judge Sameer Bajpai rejected the bail application of Umar Khalid in the Delhi riots conspiracy case. The judge observed that Kahlid’s bail plea was earlier rejected by the Sessions Court and his appeal against the order was further dismissed by the Delhi High Court as the latter found the case against the accused prima facie true. Notably, Umar Khalid had filed second bail plea with the Sessions Court after he withdrew his bail application from the Supreme Court citing “change in circumstances” to try  his “luck” in trial court. Pertinent, before Khalid withdrew his bail petition from the SC, the case had already witnessed 14 adjournments. Earlier, the Session Court had rejected his first bail application on March 24, 2022, following which he moved to the Delhi High Court, which again rejected his appeal on October 18, 2022.

As the Sessions Court rejects his latest bail petition on 28 May, Khalid continues to remain in jail for more than three and half years now even as some of the co-accused in the case have secured bail, including Natasha Narwal, Devangana Kalita, and Asif Iqbal. Khalid’s counsel pointed out this fact and argued that his client should be granted bail on parity, but the court rejected his arguments. Justice Sameer Bajpai of the Sessions Court reemphasised the previous orders of the Sessions Court and the Delhi High Court rejecting Khalid’s bail petitions.

Notably, Umar Khalid has been booked in this case under plethora of charges including Section 120B (criminal conspiracy) read with Sections 124A (sedition), 302 (murder), 207 (fraudulent claim to property), 353 (criminal force to deter public servant), 186 (obstructing public servant), 212 (harbouring offender), 395 (dacoity), 427 (mischief causing damage), 436 (mischief by explosive substance to destroy house), 454 (house-breaking), 109 (abetment), 114 (presence of abettor when offence is committed), 147 (rioting), 148 (rioting armed with deadly weapon), 149 (unlawful assembly with common object), 153A (promoting enmity), 34 (common intention) of the Indian Penal Code (IPC) and Sections 3 and 4 of the Prevention of Damage to Public Property Act, Sections 25/27 of Arms Act, and Sections 13 (unlawful activities), 16 (terrorist act) , 17 (raising funds for terrorist act) and 18 (conspiracy) of the Unlawful Activities (Prevention) Act (UAPA).

Umar Khalid was first arrested in the present case on the basis of the FIR filed in connection with the northeast Delhi violence following the wide-spread anti-CAA protests against the ruling BJP. Pertinently, it took 6 months for the police following the registration of the FIR to finally arrest Khalid on September 13, 2020.

Analysis of the judgement

In the present case, Khalid’s counsel argued that the chargesheet and the supporting material provided by the prosecution does not justify the offences under UAPA and there is no evidence to show that his client has committed the alleged offences. His lawyer further argued that the alleged acts do not fall within the definition of “terrorist act” under Section 15 of the UAPA, and similarly, no offences under Section 16 and 18 of the UAPA Act are borne out from the facts. He further argued that Khalid is neither a member of any banned organisation nor is it prosecution’s case that Khalid was involved in any terror financing, and consequently, Section 17 of UAPA would be inapplicable. In addition, Khalid’s advocate said that no witness statements suggest Khalid’s involvement in the alleged activities, and given the fact that when other co-accused were granted bail in the case, who allegedly had more “direct role” compared to Khalid, why Khalid should not be granted a bail on parity.

Significantly, Khalid strongly relied on Vernon vs. State of Maharashtra (Criminal Appeal no. 639 of 2023), in which the Supreme Court had ruled that prima-facie “test” would require “…at least surface analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the court of its worth.” Furthermore, he also cited Sudesh Kedia vs. Union of India (Criminal Appeal Nos. 314-315 of 2021), Union of India vs. K.A. Najeeb (Criminal Appeal No. 98 of 2021), State of Haryana Vs. Basti Ram (Criminal Appeal No. 352 of 2006), State of Andhra Pradesh, through Inspector General, National Investigation Agency vs. Mohd. Hussain (CRL. M.P. Nos. 17570 and 17571/2013), Shaheen Welfare Association vs Union of India ((1996) 2 SCC 616), and Angelia Harish Sontakke vs. State of Maharashtra (SPL (Crl.) No. 6888/2015).

The prosecution argued that though Khalid had cited “change in circumstances” to apply for a second bail application at this court, “…the said “change in circumstances” in real terms were neither stated before the Hon’ble Supreme Court nor specially pleaded in the present bail application…” The State further claimed that bail cannot be granted merely on the basis of parity with other co-accused or due to delay in the trial, considering the gravity of offences. It also said that the Sessions Court is “bound” by the judgement of the Delhi High Court rejecting the bail plea of the accused on October 18, 2022, which should be considered “final” and “binding”. The prosecution emphasised on the ratio in the case of Gurvinder Singh vs. State of Punjab (Criminal Appeal No.704 of 2024), in which the Supreme Court had ruled that the exercise of the general power to grant bail under UAPA Act is severely restrictive and the bail in such cases is the exception and jail is the rule. Furthermore, the same judgement also said that mere delay in trial cannot be a ground for bail in serious offences like UAPA.

The judgement written by Justice Sameer Bajpai reasoned that “changes in circumstances” as cited by Khalid may be related two developments, viz., (1) delay in the proceedings and (2) new development in the law or judicial precedent. On the issue of delay in trail, the judge notes that there is no delay from the prosecution’s side in “framing of charge and commencement of the trial” but “…in fact, it is the accused persons who have moved separate applications…Thus, when the delay…is on the part of the accused persons, the applicant cannot take benefit of the same.”

On the second issue regarding development in jurisprudence on the matter of bail under UAPA, the court acknowledged that Vernon judgement was indeed delivered after the Delhi High Court verdict, and therefore needs to consider afresh into this case. Interestingly, while the Vernon judgement was cited by Khalid for securing his bail as a liberal judgement, the court effectively used the same judgement to counter his argument. Justice Sameer said that “according to the Vernon’s case as relied upon by ld. counsel for the applicant, while considering bail, no ‘deep analysis’ of the facts of a case can be done and only ‘surface analysis’ of the probative value of evidence has to be done and as such the Hon’ble High Court has in fact did complete surface analysis of probative value of the evidence while considering the prayer of the applicant for grant of bail and after doing so it was concluded that prima-facie case is made out against the applicant.”

Importantly, the Sessions Court seems to have addressed Vernon judgement only because it was relied upon by Khalid for securing his bail, but effectively, the court has considered Vernon judgment not be a good precedent. Instead, the Session Court has heavily relied on the recent judgement of the apex court in the case of Union of India vs. Barakathullah (SLP (Crl.) Nos.14036-14040/2023), in which the bench of Justices Bela Trivedi and Pankaj Mithal reaffirmed the law “as laid down in National Investigation Agency vs. Zahoor Ahmad Shah Watali and Gurvinder Singh vs. State of Punjab & Anr. and opined that the court at the stage of considering the bail application of the accused is merely required to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the alleged offence.”, Justice Bajpai noted in his verdict.

The verdict concluded that “there are no change in circumstances only due to the fact that the words ‘surface analysis’ have been added in it” and the “order of this Court as passed on 24.03.2022 has attained finality and now, in no stretch of imagination this court can make analysis of the facts of the case as desired by the applicant and consider the relief as prayed by him.”

As the Sessions Court rejected Khalid’s bail application for the second time, it noted that the verdict does not express opinion on the merits of the case.

The copy of the judgement can be found here:

Related:

The worst from Indian courts: 2022 | CJP

UAPA: Delhi HC denies bail, Umar Khalid’s Incarceration to Continue | CJP

Dr. UMAR KHALID | CJP

The post Interpreting the precedent in Vernon in favour of the State, Umar Khalid’s bail plea rejected by Karkardooma Sessions Court appeared first on SabrangIndia.

“The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system”

– Justices Sanjay Kishan Kaul and MM Sundaresh, Supreme Court July 11, 2022

India follows a reformative form of justice system. Our criminal system is founded on the belief of not curtailing the rights of a prisoner and under trial. The system, thus far, also empowers constitutional courts to protect the fundamental rights guaranteed to every citizen of our country. Time and again, the Supreme Court of India has voiced this commitment and but for the dark blemish during the Emergency when personal liberty was curtailed, the Courts are bound to protect and uphold the right to personal liberty of all.

In recent years, a slew of definitive verdicts on increasing numbers and hardships faced by under trials, inordinate and even mala fide delays in hearing bail pleas have sneaked their way as judgements of the court, resulting in a rather mixed jurisprudence. This has then indicated a worrying shift away from holding personal freedom of those incarcerated as paramount.

Over the past 18 months and more, with the leadership of the Supreme Court under Chief Justices NV Ramanna, UU Lalit and DY Chandrachud, the issue of delayed bail hearings have been at the forefront. Pointing out that 80 per cent of those in jail are under trials, Justice Ramanna had listed hasty arrests and difficulty in getting bail as the major causes. The 74 day long short tenture of Chied Justice UU Lalit, too saw significant pronouncements in this regard. After assuming his office in 2022, Chief Justice of India DY Chandrachud had emphasised on following the fundamental principle of ‘bail not jail’ while dealing with the cases of under trials languishing in jails. He had said “the number of under trials languishing in prisons in India reflects a paradoxical situation, and deprivation of liberty, even for a single day, is a day too many.”

2023 – A bumpy ride towards personal liberty

2023 saw trials courts denying bail indiscriminately, more so in cases concerning dissenting political prisoners including activists and journalists. Then, the Supreme Court emerged as the court of call for bail! The CJI remarked, “The reason the higher judiciary is flooded with bail cases is because of a certain reluctance from trial courts to grant bail.” The CJI also spoke about a “sense of fear” in judges in district courts in granting bail, especially in cases involving heinous crime.

Looking back at this calendar year, 2023, we look at some of the most crucial pronouncements by constitutional courts- both the hits and the misses. Following 2022 pronouncements, this year too, saw the Supreme Court make some strenuous efforts to streamline bail procedures and judicial attitudes adopted by lower courts. From responses of several state governments in these proceedings, it is evident that the freedom and liberty of the individual is a matter of low priority. Even the Supreme Court itself has erred on many occasions. In some cases, bail hearings (required to avoid the merits of the charges/case) actually unfolded as mini trials, denial of bail in economic offences saw a spiking trend; often getting a bail hearing heard has been an uphill task. Draconian statutes like the Unlawful (Prevention of Activities) Act and the Prevention of Money Laundering Act (PMLA) that have scripted within a denial of basic freedoms saw hedgy ratifications by judgements of the Court.

Where courts rose to uphold personal liberty in 2023

Several positive judgments on grant of bail emerged from both the Supreme Court and the High Courts of India. In these, these constitutional courts set aside the erring judgments of the subordinate courts, emphasising on their poor application of law and fact while denying bail.

• Not instrumental in the alleged violence:

On January 28, Allahabad High Court granted bail to Javed Pump, leader of Welfare Party of India, who was deemed as the “mastermind” behind the violence in Prayagraj (formerly Allahabad) and had his house unlawfully demolished by the administration.  Violence had been reported in Prayagraj and Saharanpur after the Friday prayers in June 2022 when citizens were protesting against remarks made by erstwhile BJP spokesperson, Nupur Sharma berating Prophet Mohammad. While granting him bail, Justice Sameer Jain observed that given the evidence on record, including statements of witnesses and the accused, Javed did not appear to be the one who provoked any violence. The Court held that he, Javed was only instrumental in a large gathering of people assembling at the location.

• Action and re-education for those judicial officers, prosecuting agencies that violate bail orders:

On March 21, the Supreme Court had expressed disbelief over some of the trial courts failing to adhere to the Supreme Court’s order issued in the case of in Satender Kumar Antil vs Central Bureau of Investigation (Justice Sanjay Kishan Kaul and MM Sundaresh, July 2022). In the 52 page judgement delivered in this case, detailed directives had been issued to trial courts, sections of the Indian Penal Code (IPC) and CRPC had been explained relying on a rich body of previous jurisprudence from the Supreme Court. The Court had re-emphasised that bail is the norm and jail should be the exception.

Expressing their frustration at the refusal of trial courts to adhere to this July 2022 judicial directive, the Supreme Court declared that the courts should not issue detention orders in a routine and mechanical manner, denying the accused’s liberty, and that such judges need to be sent to academies to “upgrade their knowledge.” The Supreme Court also warned that prosecuting agencies, including the CBI, magistrates and public prosecutors, would be “hauled up” if they continued to take a stand in trial courts contrary to the apex court verdict while opposing bail petitions.

In the Satender Kumar Antil case, the Supreme Court had laid out elaborate guidelines regarding arrest and bail. It had observed that non-compliance would have two consequences: a) sending people to custody when they were not required to be sent, and b) causing additional litigation, both of which the Court thought should not be tolerated.

• Failure to reasonable grounds to prove allegations of UAPA are prima facie true:

On April 17, the Supreme Court granted bail to two accused who were alleged to belong to CPI (Maoist) and were also charged with the murder of two Telugu Desam Party (TDP) leaders. In this 2018 murder case of TDP leaders, the bench comprising Justices Abhay S. Oka and Rajesh Bindal granted bail to the two on the grounds that the accused had been detained for more than four years and that charges had not yet been framed. The Court also observed that the materials on record failed to provide reasonable grounds for believing that the allegations against the appellants of commission of an offense under the UAPA are prima facie true, and thus the bar against granting bail under Section 43D(5) of the Unlawful Activities (Prevention) Act was not invoked.

• Sessions court judge sent to judicial academy by SC for denying bail:

On May 2, a bench of Justices Sanjay Kishan Kaul and Ahsanuddin Amanullah of the Supreme Court asked the Allahabad High Court to immediately withdraw any judicial work from a sitting judge of the Sessions Court and send him to the judicial academy to upgrade his judicial assessment skills. The action came as a direct result of trial courts continuing to show reluctance to grant bail to accused in cases where custody was not needed despite the Supreme Court’s various rulings to be liberal in their approach and not pass detention order in a routine and mechanical way.

Notably, in one case of a matrimonial dispute, a Sessions judge in Lucknow rejected the anticipatory bail plea of a man and his mother, father and brother despite the fact that they were not arrested during the probe. In another case, an accused suffering from cancer was denied bail by a CBI court in Ghaziabad.

• SC holds Gujarat HC’s observation in Teesta Setalvad’s case both ‘perverse’, ‘contradictory’ while granting her bail:

On July 19, a Supreme Court bench comprising Justices BR Gavai, AS Bopanna and Dipankar Datta had quashed the Gujarat High Court’s order which denied Teesta Setalvad regular bail, opining that the High Court’s observations were “perverse”. The bench had pointed out that there was a “self-contradiction” in the High Court’s order, as the court almost commented on findings of guilt (merit) despite observing that it could not, consider the merits of any allegation while deciding bail. Most importantly, Justice Gavai had also pointed out that the FIR in the case filed by the Gujarat Police, ostensibly on observations made by the Supreme Court in the Zakia Jafri case, were made without hearing co-petitioner Teesta Setalvad, going against the principles of natural justice.

During the hearings, the bench had also asked a number of incisive and critical questions to the prosecution, making a note of other crucial observations. Firstly, the Supreme Court was bemused to note the Gujarat HC’s approach in holding that the offences should be presumed to be admitted against Setalvad since the petitioner did not file any petition to quash the charge sheet. Secondly, the bench had also pointed to the long delay in filing a case against Setalvad given the fact that the Zakia Jafri case was being litigated since 2008.

The Supreme Court had, on September 2, 2022 first granted interim bail to human rights defender and journalist, Teesta Setalvad after which prolonged hearings for regular bail, took place, every six weeks before the Gujarat High Court. After close to ten months of this, on a Saturday, a single judge of the Gujarat High Court not just rejected bail but refused to grant her stay to appeal to the Supreme Court, directing that she “surrender immediately.” This too was adversely commented upon by the Supreme Court.

• Bail order cannot be cryptic and casual, needs to be backed by reasons considering vital aspects:

On July 24, the Supreme Court bench cancelled the bail order granted by the Rajasthan High Court, granting bail to 3 people involved in the case of an honour killing. The Bench comprising Justices B.V. Nagrathna and Prashant Mishra was hearing an appeal against the said bail order. Setting aside the “cryptic” and “casual” orders passed by the High Court granting bail to the accused, the Supreme Court observed that a prima-facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record.

The bench stated that even in the past, the Supreme Court had ruled that an order granting bail in a mechanical manner, without recording reasons, would suffer from the vice of non-application of mind, rendering it illegal. The bench then reiterated and emphasised on the factors to be taken into consideration for bail, namely the seriousness of the offense, the likelihood of the accused fleeing from justice, the impact of the release of the accused on the prosecution witnesses, and the likelihood of the accused tampering with evidence.

• Mere possessing literature which propagates overthrowing government does not attract UAPA:

On July 28, Supreme Court bench of Aniruddha Bose and Sudhanshu Dhulia granted bail to activists and Elgar Parishad members Vernon Gonsalves and Arun Ferreira in the Bhima Koregaon violence case. While granting the two bail, the bench held that, though the charges against the two accused are serious, that alone cannot be the reason for denying bail. The Supreme Court made certain very important observation in the case, significantly holding that mere possession of certain literature through which violent acts and methods of overthrowing democratically elected government may be propagated would not on its own attract the provisions of Section 15(1)(b) of the UAPA.

The court also observed that none of the material against these accused, whether the electronic recovery from the co-accused, material recovered from the accused themselves or the witness statements, attributed any direct violent act against them.

• Duty of the court to be more onerous, bail cannot be denied just because serious allegations

On November 9, a man booked under provisions of UAPA was granted bail by the Punjab & Haryana High Court on the ground that no prima facie case had been made out against him. The man had been accused of allegedly planning to commit some terrorist acts based on relations with Pakistan. The said judgment, delivered by a division bench of Acting Chief Justice Ritu Bahri and Justice Manisha Batra, notes that no prima facie case had been made against the accused which points to him being part of any conspiracy to form membership of a terrorist gang with the aim of committing acts against the interest of the nation. The bench also emphasised on the duty of the court to be more exhaustive in cases where stringent provisions of the UAPA are invoked as bail cannot just be denied because serious allegations are made.

• Charges of “abetting terrorism,” “waging war against the country” against Fahad Shah quashed:

On November 17, the Jammu and Kashmir High Court granted bail to Peerzada Fahad Shah, Kashmiri journalist and editor of the Kashmir Walla. The court quashed the charges of “abetting terrorism,” “waging war against the country,” and “promoting enmity” that Shah had been booked under the UAPA. In February of 2022, Shah was arrested by the police in relation to an alleged “incorrect reporting” on his portal regarding an encounter in Pulwama wherein three militants, including a top commander, had been gunned down. Shah still remains in jail as he continues to face trial under Section 18 of the UAPA. Finally, charged were quashed against Fahad Shah on November 17, 2023 and he was released from jail on November 23, 2023.

• Being a critic of government no ground to detain a person, detaining authorities apply no mind:

On November 19, the Jammu & Kashmir and Ladakh High Court quashed the detention of Sajad Ahmad Dar, a Kashmir-based journalist, while criticising the tendency of the authorities to detain persons for simply being the critics of the government. The High Court termed such detentions to be an abuse of the preventive detention law. Dar had been under detention since January 16, 2022 under the Jammu and Kashmir Public Safety Act (PSA). While detaining Dar, the detaining authorities had accused him of tweeting and making such controversial statements that promoted enmity and were prejudicial to maintenance of public order and security of the State.

In a judgment quashing the FIR, the High Court bench comprising Chief Justice N. Kotiswar Singh and Justice MA Chowdhary observed that Dar had not been provided with the relevant documents required under law to make an adequate representation against his detention. The court had further noted that there were no specific allegations made against Dar to show that his activities could be attributed to be prejudicial to the security of the State. Observing this, the Court found the allegations to be vague and general and without any specific instance to show that Dar had been working against national interests. Following the aforementioned observation, the bench of the High Court declared unequivocally that an individual cannot be imprisoned solely for the reason that he criticizes the government. Finally, charged were quashed against Sajad Dhar on November 19, 2023 though he has yet to be released.

• Detention “illegal and unsustainable”, grounds of detention and other relevant documents not supplied to detenu:

On December 7, the detention order against Aasif Sultan, who had been detained under the Public Safety Act (PSA) since April 2022, was quashed by the Jammu and Kashmir and Ladakh High Court. In the judgment delivered by Justice Vinod Chatterji Koul, the court observed that the said detention order was illegal and unsustainable as the detaining authority failed to provide Sultan with all the relevant material on which the order was based. It was noted by the court that only five leaves of the relevant documents had been provided by the authorities to Sultan, violating his rights under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978. Notably, crucial documents such as copies of First Information Reports (FIRs) and statements had not been supplied to the detenu.

Sultan, a journalist working for the Kashmir Narrator, was arrested in August 2018 and booked under various charges, including sedition and criminal conspiracy. He was granted bail in these cases, but was subsequently re-arrested and detained under the PSA in April 2022.

• ED cannot keep people under pre-trial detention for so long:

On December 8, the Supreme Court granted bail to Pernod Ricard India regional head Benoy Babu in connection with a money-laundering case arising out of the alleged Delhi excise policy scam. A bench of Justices Sanjiv Khanna and SVN Bhatti stated that that the Enforcement Directorate (ED) cannot keep someone behind bars for 13 months with no charges being framed. Notably, the same bench had denied bail to former Delhi deputy chief minister. The case arose out of a first information report registered by the Central Bureau of Investigation (CBI), alleging that officials of the Delhi government had connived to grant liquor licenses to certain traders in exchange for bribes. The central agencies’ case is that the excise policy was tweaked and the profit margins changed to benefit certain traders.

Judgments granting interim protection-

This year saw many journalists, activists and lawyers being booked by the state for exercising their rights. A common thread between the ones targeted was that these people had voiced their opinions against state policies or agencies backed by state. In most of these cases, the Supreme Court came to the rescue of the ones being booked and provided them interim protection from coercive actions.

• Protection to independent Assam MLA Akhil Gogoi from arrest

On February 21, the Supreme Court has granted protection to Akhil Gogoi, an independent MLA from Assam, against arrest in a case related to the anti-Citizenship Amendment Act (CAA) protests and alleged Maoists links, which was being investigated by the National Investigation Agency (NIA). The legislator, who had reportedly been outspoken against the central government during the anti-CAA protests, had approached the Supreme Court against the February 9 ruling of the Gauhati High Court, which had allowed the special NIA court in Assam to proceed with framing charges against him in one of the two cases.

• Protection in sedition case against lawyer who accompanied fact-finding team to Manipur

A three membered team of National Federation of Indian Women, associated with the Communist party, had gone to violence struck state of Manipur in the month of July. The state had been under the tight grip of ethnic violence from May 3, 2023. After the investigation, a news conference was held in Imphal on July 1 and a press release with the team’s findings was also released. The said the NIFW team had come to the conclusion that the State was behind several violent episodes in Manipur, and thus termed them to be “state sponsored”.  Following this, on July 8, the Manipur Police had filed a FIR, charging advocate Deeksha Dwivedi and NIFW representatives with sedition, defamation, making assertions prejudicial to national-integration and, other related offences. On July 11, the Supreme Court had granted interim protection to Dwivedi.

• Protection to Editors Guild of India after multiple FIRs filed for Manipur Reportage

On September 6, the Supreme Court granted interim protection from arrest to four members of the Editors Guild of India who were facing face multiple FIRs filed by Manipur police. These FIRs had been filed against the EGI after a fact-finding report had been published by the members on the ethnic violence that has shaken the north-eastern state of Manipur. The Chief Minister of Manipur N Biren Singh had told media that his government had filed an FIR against the president and 3 Guild members for “trying to incite ethnic clashes”. The Chief Minister has earlier labelled the guild as anti-national and anti-state.

• Protection to two journalists from Gujarat police arrest over article against Adani Group:

On November 3, a Supreme Court bench comprising Justices BR Gavai and Prashant Kumar Mishra granted interim protection from arrest to journalists Ravi Nair and Anand Mangnale, OCCRP South Asia editor. The two had moved the Supreme Court challenging the summons issued against them by the Ahmedabad crime branch, asking them to appear in person for questioning with respect to the police’s “preliminary probe” into their article published on the Organized Crime and Corruption Reporting Project (OCCRP) website. The article was reportedly critical of the Adani group.

Where courts faltered as did the right to personal liberty, in 2023

While denial of bail, unless absolutely made out, should not be the rule in any democratic country, and denial should be the rule when offences against vulnerable sections are made out, here are two judgments that reflect a regressive trend.

In one, bail was granted to a vigilante allegedly accused of brutally killing a Muslim man. In the second, another man was denied bail, even when the accusations against him were not made out, especially enough to justify the charge under a draconian law. This begs the question, how and why are there disparate standards applied in granting bail especially when the law lays down that only and especially in cases of murder, can and should bail be denied?

• Bail to cow vigilante Puneeth Kerehalli, accused of killing a Muslim man:

On April 1, the Karnataka High Court granted conditional bail to cow vigilante murder accused Puneeth Kerehalli and four others who were arrested in connection with the murder of a Muslim man named Idrees Pasha. They had been arrested on April 5 as they were suspected of brutally lynching to death a Muslim man on suspicion of cow theft in Karnataka’s Ramanagara district. Kerehalli and other accused were booked on charges of murder, assault, criminal intimidation, wrongful restraint and intentional insult to provoke breach of peace. All accused are known to be associated with Rashtra Rakshana Pade, founded by Kerehalli with links to supremacist Hindutva outfits. Notably, they had been denied bail by the trial court, after which they had moved the high court.

• Denial of bail to Manish Sisodia even after absence of any creation of proceeds of crime:

On October 30, a Supreme Court bench comprising Justices Sanjeev Khanna and SVN Bhatti denied bail to former Delhi deputy chief minister and Aam Aadmi Party leader Manish Sisodia’s in the Enforcement Directorate case. The CBI arrested Sisodia on February 26, charging him with taking a bribe for tweaking the excise policy of the Delhi government to favour a liquor lobby. On March 8, the ED formally charged Sisodia under the Prevention of Money Laundering Act (PMLA).  Since then, Sisodia has been in prison, having had his bail denied by the Delhi High Court and the lower courts.

This particular verdict rejecting bail plea of Sisodia is likely to have an adverse impact bail jurisprudence generally, especially grant of bail under the dreaded PMLA.

While ironically, in his judgement, Justice Khanna had raised “some doubts” about some of the charges levelled by the ED and yet, he refrained “from delving… in depth and detail into some of the legal questions arising in the matter” while denying Sisodia bail. While the bench during the widely publicised hearings in the case, had often commented that it found no substance or strength in the ED’s case against Sisodia, they still provided to deny him his personal liberty. The order simply stated that Sisodia could file a fresh bail application in this case if the prosecution did not complete the trial by February 2024. Sisodia, has been in jail since February 2023. In effect, the bench ensured that Sisodia is not let out on bail before completing at least a year behind bars, without trial.

Justice Delayed is Justice Denied

‘The Truth Will Out’

A political prisoner can be defined as someone who has been imprisoned because that person’s actions or beliefs are contrary to those to their government. As per Assistance Association for Political Prisoners, a political prisoner is anyone who has been arrested because of their perceived or real active involvement or supporting role in political movements. The arrest of such people can be associated with political motivation, regardless of the laws they have been sentenced under.

India does not recognise political prisoners. In the past few years, we saw the invocation of draconian union and state laws such as UAPA, PSA, NSA and PMLA being increasingly invoked against activists, students, journalists, writers, lawyers, human rights defenders, etc. for speaking or writing against state policies. The mindless application of these laws saw many (and in majority) Muslim, Dalit and Tribal activists being incarcerated by the state without any hope for trials.

Throughout this year, we saw many such cases of political prisoners and human rights defenders awaiting bail and personal freedom, being mentioned before the Supreme Court and High Court, yet going unheard. These have been adjourned for long periods of time for no particular reason. As a result several academics, youth leaders and advocates, in 2023, continue to languish behind bars as under trials in our overcrowded jails, booked under charges that are yet to be proven.

Enduring prolonged incarceration due to excessive delays in court proceedings

• Umar Khalid:

In September, Senior Advocate Kapil Sibal, appearing for Khalid, had appeared before a Supreme Court bench of Justices Bela Trivedi and Dipankar Datta had said that he would, in a matter of twenty minutes show that there is no case against Khalid.

“I can demonstrate in twenty minutes that there is no case at all,” Sibal had said.

The bench was hearing the bail application of former JNU scholar and activist Umar Khalid in connection with the Delhi riots larger conspiracy case. He had been behind bars for over three years, since September 2020, awaiting his trial under the UAPA for his alleged involvement in the larger conspiracy surrounding the communal violence that broke out in February 2020 in the national capital. The hearing had been adjourned on that day.

On November 29, a separate bench comprising Justices Bela M Trivedi and Satish Chandra Sharma adjourned the hearing on the bail plea for Khalid to January 10. His bail plea had been pending before the Supreme Court since the month of May 18, 2023 when notice was issued on his special leave petition against the Delhi High Court’s denial of bail filed on April 16, 2023. This has, since, suffered multiple adjournments.

• Shoma Sen:

On December 6, a Supreme Court bench of Justices Aniruddha Bose and Augustine George Masih was hearing a special leave petition filed by Shoma Sen challenging a January 17 order of the Bombay High Court, by which it directed her to approach the special court trying her case, for bail. Sen is an English Professor who has been lodged in jail since June 2018 for offences under the UAPA in connection with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, and for having alleged links with the proscribed outfit, Communist Party of India (Maoists).

The hearing in Sen’s case was scheduled for hearing on December 7, but owing to a change in the composition of the bench, will now only be on January 10.

• Jyoti Jagtap:

On December 7, a Supreme Court bench comprising Justices Aniruddha Bose, Sudhanshu Dhulia and Augustine George Masih adjourned the matter of Jyoti Jagtap’s bail plea to the third week of January, after Shoma Sen’s regular bail plea has been heard. Jagtap is an anti-caste activist and musical performer who has been incarcerated as an under trial since September 8, 2020. She is also an accused in the Bhima Koregaon–Elgar Parishad violence case and has been charged under the UAPA.

• Delhi riots Conspiracy case:

On November 1, it was announced that the bail pleas of Sharjeel Imam, Khalid Saifi and other persons accused in the Delhi riots “larger conspiracy” case will be heard afresh by the Delhi high court in the year 2024. A special bench headed by Justice Siddharth Mridul, who has now been elevated as the chief justice of the Manipur high court, had reserved its order in three cases – including the bail pleas of Imam, Saifi, Gulfisha Fatima, Meeran Haider, Shadab Ahmed, Athar Khan, Shifa ur Rehman and Salim Khan; and the Delhi police’s appeal to cancel the bail granted to accused Ishrat Jahan. Since the elevation of Justice Mridul, a division bench of Justice Suresh Kumar Kait and Justice Shailender Kaur will start hearing the appeals fresh from January 2024.

• Mahesh Raut:

On September 21, five years after Mahesh Raut, a 36-year-old tribal rights activist, was arrested for his alleged role in the Elgar Parishad case, the Bombay high court had granted him bail. The High Court bench comprising Justices A.S. Gadkari and Sharmila Deshmukh had expressed the view that many sections of the UAPA applied against Raut were not tenable. The court also took his long incarceration into consideration and the fact that Raut has no criminal antecedents, the division bench had granted him bail.  However, a week’s stay had been granted against the application of the HC’s judgment on the request of NIA so as to have time to appeal in the Supreme Court. Several weeks have elapsed and yet the appeal continues to be pending before the Supreme Court bench of Justice Bela Trivedi while Raut continues to be incarcerated in jail.

• Prabir Purkayastha and Amit Chakravarty

On October 3, NewsClick founder and journalist Prabir Purkayastha and its human resources head Amit Chakraborty were arrested by Delhi Police Special Cell under the charge of UAPA. Multiple raids had been conducted at the Newsclick offices and the homes of associated journalists following allegations that the news organisation received money to spread Chinese propaganda. A plea had been filed by the two arrested against their arrest under the anti-terror law along with an interim bail for Purkayastha on medical grounds. Regular bail pleas for both have also been filed. In November, a bench of Justices BR Gavai and Prashant Kumar Mishra had adjourned the hearing stated that it would hear the petition immediately after the Diwali break. The petitions are yet to be heard and are likely now to come up in January 2024 after the winter break.

The ones who bail petition is yet to be heard in the courts-

Many other names, such as journalist Rupesh Kumar Singh, Kashmiri journalist Irfan Mehraj and Kashmiri human rights activist Khurram Parvez do not find themselves on the above list as their bail pleas are yet to be mentioned in the Courts. In September of 2023, anti-CAA activist Shadab Ahmad, incarcerated for over three years in cases related to the 2020 Delhi pogrom, had reportedly developed abdominal tuberculosis. His family had been appealing for his release, to no avail.

In Odisha, 9 Dalit-Adivasi activists were booked under UAPA for leading the Niyamgiri movement. The Niyamgiri movement is a grassroots people’s movement against big corporations. The FIR against them came on the same day that marks the International Day of the World’s Indigenous People. There is no information available for the status of their bail or trials.

Out of the 16 arrested in the Bhima Koregaon violence case, six of them (including Raut) have been granted regular bail from either the High Court or the Supreme Court. One of the accused, Father Stan Swamy, an 84-year-old Jesuit priest and tribal rights activist, died of failing health in July 2021 while in judicial custody. Gautam Navlakha had been under house arrest. As many as eight of the accused still remain in jail, including activists Sudhir Dhawale, Rona Wilson, Hany Babu, Surendra Gadling, Professor Shoma Sen, Ramesh Gaichor, Sagar Gorkhe and Jyoti Jagtap.

Many miles to go…..

The list of political under trials and political prisoners is not exhaustive and every state, regardless of political affiliations uses the ‘jail stick’ to curtail protest and individual freedoms. As numbers of under trials in India’s jail touch close to 5,00,000 with conditions in prisons including the grant of effective legal aid often being a misnomer, an independent judiciary is required to step in to curb repressive state acts.

While several judgements provide guidelines and directives to district and trial courts to grant speedy bail after a correct understanding of the law –even flagging the urgent need for a Bail Statute (law), even India’s constitutional courts have often faltered in upholding freedom and liberty. Individual aberrations or political considerations, these verdicts have resulted in a mixed jurisprudence on the right to every Indian to be granted bail.

2023’s journey reveals a bumpy road towards personal liberty.

Related:

How fundamental are our rights? An examination of the judgement in the Marriage Equality Case: SC

How difficult is it to obtain Bail under the UAPA?

What does it take to secure bail under UAPA?

Mere association or support to terror organisation, not sufficient to attract UAPA: SC

The post India’s constitutional courts navigate challenges in upholding personal freedom over incarceration appeared first on SabrangIndia.

Ueland demanded that the United States take seriously the extensive reports of India’s use of draconian anti-terrorism laws to silence activists from minority faith backgrounds. He further called on the State Department to designate India as a Country of Particular Concern (CPC) for egregious violations of religious freedoms.

This special briefing was co-sponsored by 18 American civil rights organizations including the Indian American Muslim Council, Genocide Watch, World Without Genocide, Hindus for Human Rights, International Christian Concern, Jubilee Campaign,  21Wilberforce, Dalit Solidarity Forum, New York State Council of Churches, Federation of Indian American Christian Organizations of North America, India Civil Watch International, Center for Pluralism, International Commission for Dalit Rights, American Muslim Institution, Students Against Hindutva Ideology, International Society for Peace and Justice, The Humanism Project and Association of Indian Muslims of America.

“We strongly urge policy recommendations that take these abuses seriously, especially the importance of the United States in its designation of India as a CPC in the coming months, and not let India off the hook from the consequences of a CPC designation with some sort of scummy waiver,” said Ueland.

Over three years ago, on September 13, 2020, Umar Khalid was charged with terrorism and arrested under the Unlawful Activities Prevention Act (UAPA) after Indian authorities falsely accused him of inciting communal violence following a speech he delivered during nationwide protests against the Citizenship Amendment Act (CAA), 2019. The CAA has been widely criticized by Indian jurists and activists alike as a law that discriminates on the basis of religion (read Islam) and thereby excludes them from being able to receive fast-tracked Indian citizenship.

In his speech during widespread protests at the time (2019-2020), Khalid had called for nonviolent resistance against the far-right government of Prime Minister Narendra Modi and his party BJP.

Also speaking at the briefing organised in the country’s capital was Syed Qasim Rasool Ilyas, the father of Umar Khalid, who stated that he was not only speaking to represent the case of his son, but to represent the cases of all India’s political prisoners.

“Those who are languishing in jail – what was their crime?” Ilyas asked. “They have spoken against a discriminatory law. [For this,] they have been charged with sedition, they have been charged with terrorism, and they are languishing in jail for the last three years under the Unlawful Activities Prevention Act.”

He added, “People must know what is prevailing in the country. India is the largest democracy in the world. But we are afraid of whether it will remain as a democracy or not after the 2024 election. If this government comes back, people feel that the democracy of the country will be lost.”

Indian journalist Niranjan Takle, also quoted Umar Khalid’s speech to anti-CAA protestors, saying, “If they spread hate, we will respond with love. If they thrash us with sticks, we will keep holding our national tricolor flag high.”

“What is anti-national in this speech?” he added. “What is it that is provoking violence? But based on this speech, frivolous charges were raised against [Khalid], and he has been incarcerated in jail for the last 37 months… and the Supreme Court of India is not ready to even hear the bail petitions.”

Related:

When speeches are given a criminal colour & ‘conspiracy’ charges used to incarcerate: Gautam Bhatia on Umar Khalid, Jyoti Jagtap bail orders

Umar Khalid’s Battle against the UAPA Charges to Continue

Umar Khalid bail plea: Prosecution concludes arguments before Delhi HC

The post Umar Khalid’s incarceration: USCIRF Commissioner expresses concern over use of anti-terrorism laws to silence activists appeared first on SabrangIndia.