Umar Khalid’s speech prima facie not acceptable, obnoxious: Delhi HC

Delhi High Court issues notice on Umar Khalid’s bail appeal

Umar KhalidImage: Newslaundry

On April 22, 2022, the Delhi High Court issued notice on the appeal filed by student activist Umar Khalid challenging the Trial Court’s order refusing him bail in the Delhi riots larger conspiracy case, reported LiveLaw.

The matter was listed before the division bench comprising Justices Siddharth Mridul and Rajnish Bhatnagar.

Senior Advocate Trideep Pais, appearing for Umar Khalid argued that the accused was not even present in Delhi when the crime he is accused of took place. He reportedly stated, “All the violence, all over Delhi is subject matter of almost 750 FIRs. All of a sudden comes this fresh FIR on March 6 and I am named in that FIR. It had bailable offences.” When the Bench asked what was it that Umar Khalid was accused of, the Counsel responded, “Silent Whisper.”

The Counsel informed the bench that there was only one speech relied upon by the police and the Special court failed to give a finding that the Speech is provocative.

On being asked by the court, the counsel read out the text of the Speech where Khalid had invoked the Rashtriya Swayamsevak Sangh (RSS) and Hindu Mahasabha’s alleged ties with the British government during the freedom struggle.  With respect to the claim made by Khalid those students of Jamia Millia University who were one of those to stood against the British rule are now being canned, the Court reportedly asked, “It gives impression that only one community was fighting against British? Did Gandhiji ever employ such language? Did Bhagat Singh ever employ this? Is this what Gandhiji told us?” The Bench further stated“These expressions being used, don’t you think they incite people? You don’t think “jab aapke purvaj angrezo ki dalali kar rahe the” is offensive? We have no issues with freedom of speech. But what is this language? Can the free speech extend to making these statements? Does it not attract provisions of IPC 153A and 153B? We are not surprised that the FIR is premised on this part of the speech as prima facie this is not acceptable in four corners of democracy and free speech.”

The Court jibed at Umar Khalid by reportedly saying, “It is easy to invoke Bhagat Singh but very difficult to emulate him. Bhagat Singh chose to stay at the assembly to get arrested.” In Khalid’s defence the counsel stated, “If this is obnoxious speech so be it. That is not why I am here. I am here on allegations of terror. It is so easy to use UAPA and get statement and form chargesheet,” to which the Court replied, “We find the speech obnoxious and inciteful.”

Agreeing to give the shortest date as requested by Pais, the Court listed the matter for April 27, 2022 while issuing notice on the appeal. Special Public Prosecutor Amit Prasad sought time to file a short reply and undertook to place on record an electronic copy of the subject chargesheets after providing a copy to the appellant. The court directed the parties to show Indian jurisprudence on the issue.

One month ago, 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.

He has been charged under UAPA sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act) and 18 (Punishment for conspiracy). Under the 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 trial court made out a ‘prima facie’ case merely on the basis of implausible, contradictory and vague statements made by the witnesses and gave no regards whatsoever to the fact that

(a) Dr. Khalid had not given any public calls to incite violence;

(b) There is no evidence on record that proves Dr. Khalid’s participation in funding or transporting arms nor were they recovered from him,

(c) Dr. Khalid was not even present in Delhi when the riots took place.

Grounds for denying bail as stated by the Court

  1. Dr.Umar Khalid finds a recurring “mention” from the beginning of the conspiracy till the riots.
  2. He is member of the Whatsapp groups of Muslim students of Jawaharlal Nehru University (JNU).
  3. 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.
  4. He is member of the DPSG Whatsapp group and attended meeting at Indian Social Institute (ISI) on December 26, 2019
  5. He gave reference to Mr. Donald Trump President of USA in his Amravati Speech on February 17, 2020
  6. He was mentioned in the flurry of calls that happened post riots.
  7. He was instrumental in creation of the Jamia Coordination Committee (JCC).
  8. 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.

The manner in which the Indian judiciary is undertaking a selective reading of law is frightening. 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.


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