Travesty Of Justice : On Denial Of Bail To Umar Khalid & Others

The Delhi High Court's order denying bail to Umar Khalid and nine others in the Delhi riots “larger conspiracy” case should make everyone feel deeply concerned about the state of our judiciary and its commitment to uphold fundamental rights without fear or favour.

The case has witnessed several twists and turns, with several judges recusing and several benches hearing the matter, causing significant delays. The convoluted timeline of this matter is more detailed here. That a bail matter must face such bench changes and recusals is by itself extraordinary.

Coincidentally, all the accused are students or activists who were in the forefront of mobilizing anti-CAA protests. According to the Delhi police, the mobilisation of these protests was a “larger conspiracy” to create communal riots in Delhi. As circumstantial evidence for conspiracy, several WhatsApp chats, speeches, etc, are cited. From the judgment, it is not clear what is the direct evidence of violence or incitement of violence. It says that on many instances, Umar Khalid made inflammatory speeches. But what exactly was the “inflammatory speech” of Khalid is not specified in the judgment. As per public reports, the speeches of Umar Khalid appealed for the Gandhian way of non-violent protests against the CAA. It may be recalled that in the earlier round of bail denial, the High Court had ludicrously interpreted Khalid's use of salutations "inquilabi salam" and "krantikari istiqbal" as calls for bloody violence. Had it been fiction, one could have enjoyed it as a situation of tragic-comedy. However, this is an unfortunate reality of denial of liberty on flimsy grounds.

Sharjeel Imam, another accused, has been in jail since January 2020 - at least a month before the riots- in other cases over provocative speeches. That an accused, while in custody, conspired for a month for riots, beggars disbelief.

One paragraph from the judgment is quite telling.

“At this stage, considering the evidence on record and the events unfolding in the alleged conspiracy, prima facie it appears that the Appellants(Umar Khalid and Sharjeel Imam) were the first ones to act after the CAB was passed in early December 2019, by creating WhatsApp groups and distributing pamphlets in the Muslim populated areas calling for protests and Chakka-Jaams, including the disruption of essential supplies. The prosecution case further alleges that the Appellants were constantly preaching to the masses by misleading them into believing that the CAA/NRC is an Anti-Muslim law.”

It appears that, in one broad brush, the protests against the CAA have been criminalised, and the mobilisation of protests has been loosely conflated as a “larger conspiracy” to defame the country. Criminal law always rests on specificity: A specific act, attributed to a specific accused, constituting a specific offence. However, this case rests on a total absence of specificity and proximate connections. What is seen throughout is a casual and generic labelling of the accused as terrorists and anti-nationals in wide and broad terms.

The High Court also appeared to have taken the view that propagating that the CAA/NRC was an anti-Muslim legislation amounts to delivering “inflammatory speeches on communal lines to instigate a mass mobilization of members of the Muslim Community”. If this is the approach, countless other activists, lawyers and authors, who spoke, wrote, campaigned and protested against the CAA/NRC, would become terrorists under the Unlawful Activities Prevention Act.

How can the planning of sit-ins, chakka-jams as forms of mass protests be regarded as the offence of “terrorist act” under S.15/16 of the UAPA? Road blockades are a general form of protest in our country. The protests against the farm laws saw a year-long blockade of the national highway on Punjab-Haryana border. There, the Supreme Court, instead of criminalising the protesters or ordering their removal, adopted a conciliatory approach and took steps for the resolution of the blockade by facilitating talks. Recently, the agitators demanding a Maratha quota brought Mumbai to a standstill, forcing the High Court to intervene to order their removal. The point is, however inappropriate this form of protest is due to the general inconvenience caused, it cannot be criminalised as a UAPA offence, warranting years of undertrial custody without bail.

In this context, it is worthwhile to recall that the Delhi High Court, in 2021, while granting bail to three co-accused in the case who are facing similar allegations, observed, “Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a 'terrorist act' or a 'conspiracy' or an 'act preparatory' to the commission of a terrorist act as understood under the UAPA". It is quite incredible that the present bench has not extended this view to other similarly situated accused. One of the accused, Gulfisha Fatima, was facing charges over her activities as a member of Pinjra Tod(of which were Devangana Kalita and Natasha Narwal, who got bail in 2021, also the members). According to the Court, her act of creating a WhatsApp group of only women to organise protests was a grave conspiracy. The denial of the benefit of the 2021 order, at least in the case of Fatima, is a blatant error, considering that the allegations were more or less the same. If two views are possible regarding the existence of a prima facie case, the view which aligns with the preservation of personal liberty ought to be adopted by a Constitutional Court.

It is also disappointing to see the casual manner in which the High Court sidestepped the Supreme Court's ruling in the KA Najeeb case, which held that long incarceration can be a ground for a Constitutional Court to grant bail despite the rigours of UAPA. Najeeb was a case where the accused had underwent 5 years of custody in the Kerala hand-chopping case. The judgment in Najeeb was reaffirmed by the Supreme Court in the Shoma Sen case, which observed :

“Any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post-chargesheet stage.,” 

However, the High Court distinguished the dictum in Najeeb case by saying that “the grant of bail on the sole ground of long incarceration and delay in trial is not a universally applicable rule in all the case”. But what are the special circumstances warranting the denial of bail in this case? The High Court does not specify and again falls into generic expressions by saying “the interest and safety of the society at large, apart from the victims and their families, is also a factor to be taken into consideration by the Courts while adjudicating bail applications.” Curiously, another bench of the High Court, which pronounced the order denying bail to an individual accused in the same case on the same day, made an observation that the trial was being delayed by the accused persons themselves. How could the other bench make such an adverse observation against the accused persons who were not before it, and without hearing them, is also a propriety question to be pondered.

The High Court's closing observation that the 'trial is progressing at a natural pace' and that it need not be "hurried" (in other words, need not be expedited) is like adding salt to the injury. After running roughshod over the personal liberty principle, the High Court appeared to have been mocking the misery of the accused, with these callous observations.  

A comment about this case will not be complete without mentioning the double standards adopted by the investigating agency. There are public records available of direct inflammatory speeches made by several other individuals shortly ahead of the riots, against whom the Delhi Police has not even filed an FIR till date, possibly because of their political patronage or ideological affinity. The Delhi High Court's judge, who pulled up the police for not registering FIRs against such persons, got transferred by the next morning.

The inescapable inference is that the case is a vengeful reaction of the State against those individuals who spearheaded mass protests which blocked the move for a nationwide NRC. The State wants to make an example out of these individuals as a cautionary tale. Sadly, the Court gave its blind imprimatur to the State's pursuit of vendetta.

When the present judicial period is documented in future, this judgment will certainly occupy a place in the history's hall of shame, like other abominable judgments such as ADM Jabalpur.

The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw-in.demo.remotlog.com