On October 18, 2022, in the larger conspiracy case of the Northeast Delhi riots, the Delhi High Court refused bail to student leader Umar Khalid. Since September 2020, Khalid has been imprisoned. Khalid’s appeal against the trial court’s decision to refuse him bail in the case was rejected by a division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar. On September 9, 2022, the bench had reserved its decision. The bench has stated while pronouncing the court order, “We don’t find any merit in the bail appeal. The bail appeal is dismissed,”
The High Court bench stated that there is “prima facie case” established against Umar Khalid in regards to the role played by him during the riots, chakka jaam and destruction of public property. The court order states, “The protest planned was “not a typical protest” normal in political culture or democracy but one far more destructive and injurious geared towards extremely grave consequences. Thus, as per the pre-meditated plan there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of community residing in North-East Delhi, creating thereby panic and an alarming sense of insecurity. The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such pre-mediated plan and as such the same would prima facie be covered by the definition of ‘terrorist act’.”
Emphasizing on Khalid’s role in organizing the protests that took place in various sites, the court order stated “The name of the appellant finds recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots.” The Bench then added that he was a member of WhatsApp groups like DPSG and Muslim students of JNU and had also participated in various conspiratorial meetings. The Court order states “Admittedly these protests metamorphosed into violent riots in February 2020, which began by firstly choking public roads, then violently and designedly attacking policemen and random members of the public, whereat firearms, acid bottles, stones etc. were used, resulting in the admitted and sad loss of 53 precious lives and the destruction of property worth several Crores. These protests & riots prima-facie seem to be orchestrated at the conspiratorial meetings held from December, 2019 till February, 2020.”
Additionally, the court stated that if the chargesheet and evidence gathered during the inquiry are accepted at face value, there was a premeditated conspiracy for producing disruptive chakka-jam and pre-planned protests at several scheduled places in the national capital, which was designed to “escalate to confrontational chakka-jam and incitement to violence and culminate in riots in natural course on specific dates.”
The court noted that Umar Khalid had given a speech on February 17, 2020 in Amrawati, Maharashtra, in which he made reference to the visit of then-US President Donald Trump, which the prosecution claimed was the precursor to the 2020 riots. The court was of the opinion that it cannot ignore the incriminating evidence against Umar Khalid. The court in its order stated “The manner in which the administration initially rejected permission for the appellant’s speech and thereafter how the speech came to be delivered clandestinely on that very day is something which gives credibility to the accusation of the prosecution. Further, the CCTV footages filed along with the charge- sheet, its analysis and the flurry of calls amongst the appellant and other co-accused after the riots of 24th of February, 2020 also merits consideration in the background of various meetings, statements of various protected witnesses and the WhatsApp chats filed in the charge- sheet.”
Referring to the Sr. counsel representing Khalid’s argument that word ‘revolution’ in his speech was not a crime and that there was no call for violence or incitement of any sort in the same, the Bench stated that “when we use the expression “revolution‟, it is not necessarily bloodless. This court is reminded of that although, the activity of “revolution” in its essential quality may not be different but from the point of view of Robespierre and Pandit Nehru, in its potentiality and in its effect upon public tranquillity there can be a vast difference.”
In regards to a terrorist act, the bench noted that Section 15 of the UAPA, which defines a terrorist act, covers not only the potential of threatening unity and integrity but also the desire to do so. The court stated in its order that the provision includes “not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act.”
Lastly, the bench also observed that under Section 18, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act that is also punishable. “In fact, even acts preparatory to commission of terrorist acts are punishable under section 18 of UAPA. Thus, the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its existence but the extent of its applicability; but such objection of the appellant is outside the scope and ambit of section 43D(5) of the UAPA,” the court stated in its order.
With this, the bench dismissed the appeal and upheld the order of the lower court. The order of the court can be read here.
The 765 Days Long Incarceration of Umar Khalid
Dr. Umar Khalid, an activist and human rights defender who has been hounded by the regime for years. 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. Many have fallen victim to this draconian statute which is being regularly abused often to incarcerate politically inconvenient voices, more specially so by the executive in the past 7 years. 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.
Bail Application in the Delhi High Court
Dr. Umar Khalid had moved the Delhi High Court, on April 21, 2022, challenging the lower court order denying bail to him in the Unlawful Activities (Prevention) Act (UAPA) case related to the February 2020 Northeast Delhi violence larger conspiracy case. The bail plea was heard by a bench of Justices Siddharth Mridul and Rajnish Bhatnagar.
Submissions in HC made by Counsel, Senior Advocate Trideep Pais
(a) Arguments with respect to criticism of the government
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 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 changasi was probably used by PM in a speech.”
Advocate Pais had 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’. He had 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 Paishad 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 had argued.
(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.”
Advocate Pais had further submitted that “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 jaam, chakka jaam 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. He was quoted 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 in jaam 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.”
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.
(d) Arguments about membership of Whatsapp groups
Senior Advocate Pais submitted that mere membership of Whatsapp groups, as alleged by the prosecution, cannot make Khalid criminally liable when nothing objectionable was attributed to him. He reportedly argued, “The fact that I was part of two WhatsApp groups, out of five cited against me in which I remained silent, cannot make me criminally liable. I am not saying there was anything criminal in those groups. I am not an administrator, I am merely member of the group. Admins are someone else. Nothing else objectionable is attributed to me. If someone else has said something, that can’t be put at my door.” With respect to the three out of five groups where Khalid was not a silent member, Pais submitted that only four messages were sent in the entirety of Whatsapp chats attributed against him in which there was neither any incitement nor call for violence.
To support his argument, Pais relied on the Madras High Court judgement in the case of R Rajendran v. Inspector of Police, where the Court held that a group administrator has limited power of removing a member of the group or adding other members of the groups and that once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group.
(e) Arguments regarding the attribution of violence to the speech made by Umar Khalid
Pais denied any violence being attributed to any speech made by Khalid. He submitted that there wasn’t any recovery of any connection of his speech with violence and referred to the witness statements recorded by the prosecution, which according to him was hearsay and most importantly, recorded much after the events in proximity to his arrest. He reportedly argued, “If at all there is evidence which claims there was any kind of advocacy or incitement on my part, I don’t even concede to that, that is only in form of belated statements. To this, Justice Mridul had remarked that while the speech is in bad taste, it does not make it a terrorist act. While issuing notice on the appeal filed by Khalid, the Court had stated that the speech read out by Khalid’s counsel was obnoxious, inciteful and not acceptable.
Contentions forwarded by the prosecution, SPP Prasad
(a) Arguments with respect to the continuous support provided at every spot and protest during the riots was co-ordinated through whatsapp:
Special Public Prosecutor Amit Prasad argued before the bench about how the Shaheen Bagh protest was not driven by women protesters, but was instead planned and coordinated by activists who also tried to make the protest look secular instead of just driven by Muslims. It was the prosecution’s case that every spot and protest during the riots had continuous support and was co-ordinated through whatsapp group namely DPSG. He reportedly argued, “Every time some police action is taken, immediately lawyers are sent. Support is given.” He reportedly added, “I will demonstrate from their own chats that how they are saying that bring in more Hindus so that it looks like secularism. Locals did not support. There were people who were transported from sites. And I’ll show from statement of witnesses, how people were transported.”
Prasad further argued that there was spread of misinformation, blockade of roads at protest sites, attack on police personnel and paramilitary violence, damage to public properties and use of petrol bombs and other elements. SPP Prasad also contended that the protest sites were created through Whatsapp groups with the help of mobilization of various individuals. He reportedly argued, “There is contention raised that protest sites came on their own. It was not so. They were created, not organic in nature, created with mobilizing people from various places. Each protest site is being managed and handled by people from Jamia and DPSG.”
(b) Arguments with respect to the speech made by Umar Khalid at Amravati, Maharashtra
The prosecution made the argument that that the speeches made by various accused persons in the First Information Report (FIR) had a ‘common factor’, essence of which was to create a sense of fear in the Muslim population of the country. Specifically referring to the speeches made by Umar Khalid, Sharjeel Imam and Khalid Saifi, SPP Prasad argued that they were all connected each and formed a part of the larger conspiracy to commit the Delhi violence 2020.
He emphasized that the speech delivered by him in Amravati in February 2020 was a “very calculated speech” which brought various points including Babri Masjid, triple talaq, Kashmir, suppression of Muslims and Citizenship (Amendment) Act (CAA) and National Register of Citizens (NRC). The SPP agrued that the point that comes out through the specch is that Khalid’s grievance is not against CAA NRC, it is against Babri Masjid and Kashmir.
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 Karkardooma Court in Delhi had denied bail to Dr. Umar Khalid after deferring the order thrice, in connection with the case relating to the alleged larger conspiracy behind the communal violence that broke out in East Delhi in February 2020, where he is facing charges under the draconian Unlawful Activities (Prevention) Act and Indian Penal Code.
Arguments put forth by the Counsel for Umar Khalid:
(a) Advocate Pais referred to the WhatsApp group that was allegedly made to conspire with co-accused persons to unleash terror in the National Capital. He argued that Umar Khalid never sent a single message in this said group. The charge sheet has stated that Khalid and co-accused Sharjeel Imam communicated about the violence.Pais further alleged that there was no consistency in the charge sheet as it first claims that Imam and Khalid have a difference of opinion and later states that Imam was mentored by Khalid who asked him to start the WhatsApp group.
(b) Advocate Pais also argued that organising a protest meeting and planning a chakka jaam (road blockade) is not an offence that attracts the charges of criminal conspiracy. He argued that Khalid has been selectively targeted based on the importance to the opposition against the citizenship laws.
(c) Advocate Pais emphasized on the fact that that there were 750 FIRs registered before February 28, 2020 while the FIR 59/2020 (UAPA conspiracy case), that implicates Umar, was registered on March 6, 2020. He argued that there was no occasion or event to register FIR 59/2020 and nobody should have been arrested under it. “The charge sheet filed before conclusively shows that there was no crime disclosed when the complaint was made”, he said.
(d) Advocate Pais also pointed out that the police relied on the speech from a YouTube clip used by news agencies (News 18 and Republic TV), and not the entire speech delivered by Khalid in Amravati, Maharashtra. He added that when the news channels were asked by the police to provide the source of the speech, they said that they relied on a tweet made by Amit Malviya.
(e) Pias further submitted before the court that the Police indulged in rhetorical assertions in the charge sheet which were the result of the fertile imagination of the police officer and had no truth to it. He argued that the charge sheet stated that Sharjeel Imam is Dr. Khalid’s disciple, but this has not been proven anywhere.
Police misquoted Khalid’s speech
Umar Khalid’s counsel then referred to the charge sheet against Dr. Umar Khalid and pointed out some disturbing factors. He said that there was a public event (Khalid’s speech in Amravati) which was wrongly interpreted by the Police.
He said, “The first event was a speech in Amravati. The FIR says that I (Umar Khalid) gave “bhadkau bhashan” (provocative speech). A false description has been given about the public event; the prosecution is trying to portray it as sedition.” Pais then referred to the supplementary charge sheet where the Police has used the words “Umar Khalid, a veteran of sedition”, to argue that this is not a way charge sheets are filed.
He added, “Describing speeches when there isn’t more than one, they call it ‘bhadkau bhashan’. There are a bunch of people, sitting and listening to a speech who is speaking against CAA. None of them meet the test of evidence as a prima facie case under UAPA. This is giving a false impression to a public event which the prosecution is trying to show as terror under UAPA.”
He argued that the basis of the protest against the Citizenship Amendment Act, 2019 is to “belong to the country”. Meanwhile, the police claimed that Dr. Khalid was “a veteran of sedition” who also said that, “Bharat tere tukde honge” (India will be divided). This was in the backdrop of the 2016 incident in Jawaharlal Nehru University (JNU), where some students including Khalid were arrested and booked under sedition for allegedly raising anti-national and pro-Afzal Guru slogans.
Pais vehemently argued that no charge sheet in the past has mentioned that Khalid has raised slogans about dividing India. He asked, “When you didn’t have this in the first charge sheet in 2016, how did you produce this in the Delhi riots charge sheet and say that Umar Khalid said Bharat tere tukde honge? When you produced 17,000 pages against him, you should have added the 2016 charge sheet also. Is this how charge sheets are written? It seems like a script of some news channel. Where did they get this from?”
False witness statements
Advocate Trideep Pais also submitted that the statements provided by the protected witness are inconsistent and cannot be the basis on which Dr. Umar Khalid is incarcerated indefinitely. He said that one of the biggest theories of FIR 59/2020 is that there was a conspiracy on January 8, 2020 where Dr. Khalid, and his co-accused Khalid Saifi and Tahir Hussain met and planned the Delhi violence. Pais submitted that the protected witness was either speaking under pressure or with a “forked tongue”.
He submitted that the witness made two different statements in two different FIRs, which are inconsistent, and must not be taken seriously. He then read out his statement recorded on May 21 under section 161 of the CrPC where the witness mentioned nothing about the January 8 incident.
But on July 29, the witness mentioned the January 8 meeting, and said that he went inside the Popular front of India (PFI) office where the accused were all sitting and discussing the “plan”. Then, in August 2020, the witness submitted before the Magistrate that he did not go inside the office. But again, in September, he said that he was waiting outside the office. Pais asked, “How much malice should I show to prove my point? I’m trying to say that there is no way these statements are consistent with each other in order to meet the test of UAPA. Can we rely on this witness to keep someone in jail? How can we believe in this witness?”
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 meetings in 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 Whatsapp group 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 argued 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”.
The Karkardooma 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.
Bail in the case under IPC and Arms Act
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.”
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