28, Mar 2022 | CJP Team
After deferring his bail order thrice, the Karkardooma Court in New Delhi, finally announced its decision regarding bail for Dr. Umar Khalid, an activist and human rights defender who has been hounded by the regime for years. On March 24, 2022, Dr Khalid was denied bail in connection with the case surrounding the alleged wider conspiracy behind the communal violence that broke out in East Delhi in February 2020. But a closer look at the manner in which proceedings against Dr. Khalid transpired, and the bail order itself, reveal shades of institutional violence and a mockery of the justice system.
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. However, he continues to remain in custody in connection with the Delhi Riots larger ‘conspiracy case’ concerning UAPA charges under FIR No. 59 of 2020.
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While granting bail concerning the IPC & Arms Act charges, the Additional Sessions Judge Vinod Yadav recognised that probability of a lengthy trial in the said matter. The court observed, “The applicant cannot be made to incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob have to be identified and arrested in the matter.” It came down heavily on the State for providing inadequate evidence in this case, that is based on the statement provided by a prosecution witness. The court found the statement provided by the witness to be insignificant material and couldn’t comprehend how a lofty claim of conspiracy could be inferred based on it.
Importantly, the court noted that the material against Khalid was “sketchy” and that he cannot be incarcerated indefinitely on the basis of such evidence. “The applicant cannot be permitted to remain behind bars in this case on the basis of such sketchy material against him,” read the order. The judge also held that neither was Dr. Khalid present at the crime scene on the day when communal clashes broke out last year, nor was he captured in any CCTV footage/viral video. Further, the court also said that “…neither any independent witness nor any police witness has identified the applicant to be present at the scene of crime. Prima facie, the applicant appears to have been roped in the matter merely on the basis of his own disclosure statement and disclosure statement of co-accused Tahir Hussain.”
Under the 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). What is concerning is that 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. In this case the Delhi court made out a prima facie case merely on the basis of implausible, contradictory and vague statements made by the witnesses and gave no regards whatsoever to the fact that
(a) Dr. Khalid had not given any public calls to incite violence;
(b) there is no evidence on record that proves Dr. Khalid’s participation in funding or transporting arms nor were they recovered from him,
(c) Dr. Khalid was not even present in Delhi when the riots took place.
Grounds for denying bail as stated by the Court
- 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.
As pointed out by Dr. Khalid’s counsel, the court admitted that even though Dr. Khalid was part of the Whatsapp group (MSJ & DPSG), he has not written any messages in those groups and they are not overtly provocative or incriminatory. The court stated, “At this stage of bail, the statements of all the witnesses have to be taken at face value and their veracity will be tested at the time of cross examination.” Therefore, without engaging in any attempt to determine the veracity of these witness statements, the court made out a prima facie case by drawing together his membership with the Whatsapp groups and his connectivity with other co-accused. The court stated, “The fact that he was part of such groups created for specific objects and his acts or presence throughout the period beginning from the passing of the CAB Bill in December 2019 till February 2020 riots, has to be read in totality and not piecemeal.”
Here are some of the vague witness statements relied upon:
Para 12.3: Umar Khalid came to the protests site (Seelampur) and gave provocative speeches.
(However, the witness does not shed any light on what these statements were, to better explain how they were provocative.)
Para12.4: Umar Khalid also came at the protest site and gave speeches against the government.
(Here again, the witness does not mention what these statements were.)
Para 12.5: Umar Khalid was present at Shaheen Bagh on 08.01.2020
(Does not give any other detail aboutDr. Khalid’s actions.)
Para 12.5: Umar Khalid and his father S.Q lllyas said to the witness that he comes from Jahangir Puri where there are a lot of Bangladeshis and asked them to educate them and fight against CAA/NRC.
(No co-relation of incitement to violence can be drawn from this statement.)
Para 12.6: Witness states that he saw a video wherein Umar Khalid gave a speech in Amravati, Maharashtra stating that Trump is coming to India and they have to show their powers by coming on to the roads.
(There is no material indicating an inflammatory speech made by Dr. Khalid. On the contrary, in his speech in Amravati, he has been quoted saying, “We will not answer violence with violence, anger with anger, if they spread hatred we will reply with love, if they use batons, we will fly the tricolor, if they fire bullets, we will hold aloft the Constitution, if they put us in jail, we will sing ‘Sarejahan se acha Hindustan hamara’ and gladly head to prison – but we will not let you destroy this country.”)
The fate of a young scholar and activist who only dared to express dissent against the Citizen Amendment Bill is now being influenced by the vague statements made by the so-called Romeo, Juliet, Bond, Bravo, Saturn, Smith, Echo, Sierra, Helium, Crypton, Beeta, Delta, Gama, Yankee, and Robert.
It is disturbing that the reliability of the witness statements, based on which the bail has been denied, has been left for the stage of trial, thereby leaving a person languishing behind bars for years together, who may not even be guilty, merely based on “he said-she said”.
Dr. Khalid’s counsel Senior Advocate TrideepPais,has previously brought to the court’s attention the contradictory statements of witnesses presented in the case and even claimed them to be “cooked-up” witnesses”. In addition to that The Wire had reported on witness coercion to frame Dr. Khalid in the riots case, wherein the police interrogators drew up a prepared statement about Khalid’s supposedly proposing a “chakka jaam in Delhi” at the “opportune moment” and asked the young man to sign it. When the person argued that he had no knowledge of these and other claims, he was threatened with himself being implicated in the violence and arrested under the Unlawful Activities (Prevention) Act – India’s draconian anti-terror law. Therefore, the young man reluctantly agreed to sign the police statement. It was reported that a senior officer had added another line about Khalid promising to raise funds and the acquaintance was made to read the full “statement” in front of a video camera “in a natural way”.
Special treatment for the leaders of the ruling party
Concerning Dr. Khalid’s absence in Delhi during the riots, the Court states that in a case of conspiracy, it is not necessary that every accused should be present at the spot. It is important here to compare this with the case of BJP Leader and Supreme Court, Ashwini Upadhyay, Organizer of Jantar Mantar event, Preet Singh and Hindu Raksha Dal President, BhupenderTomar (aka Pinky Chaudhary), who were released on bail within a day, a week and two months, respectively, after being arrested under IPC section 153A (promoting enmity between different groups on grounds of religion, race, etc) in connection with raising of anti-Muslim threats in the forms of slogans during a demonstration. Chaudhary and the other accused Deepak Singh, Preet Singh and Vinod Sharma had allegedly called for the slaughter of Muslims on August 8, 2021, as part of a rally organised by Supreme Court lawyer Ashwini Upadhyay under the “Bharat Jodo Movement” against colonial-era laws in the country. In an area that is supposedly a high security zone, just a few kilometres from the Parliament, slogans like “Jab M***e Kate Jaenge, Ram RamChillaayenge” were chanted that have been recorded and widely circulated online.
While granting bail to co-accused Preet Singh, the Delhi High Court had noted that he left the spot at around 2:00 P.M whereas the inflammatory slogans were raised at around 4:00 P.M on the location, and that he was no longer required for custodial interrogation.Based on these observations, the court observed that Chaudhary left the spot of meeting at 1:29 P.M and is also not required for interrogation and hence, on grounds of parity with Preet Singh, Chaudhary be granted bail.
Moreover, no action has been taken against BJP leader, Kapil Mishra for his hate speech against Muslims, delivered a day before the same Delhi riots broke out during the anti-CAA protests.
Recently, in a case related to alleged hate speeches connected to the Northeast Delhi riots made by Union Minister Anurag Thakur and MP Parvesh Verma, the Delhi High Court said, “Was that an election speech or speech in ordinary time? If any speech is given during election, then it’s a different thing. If you’re giving a speech in the ordinary course, then it is instigating something,” adding, “If you’re saying something with a smile then there is no criminality, if you’re saying something offensively, then criminality.”
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.
Here is a listicle that demonstrates how the Indian judiciary applies different strokes to different folks.