Lawyers have for long held the bastion of protecting the rule of law. Even during the pandemic young and dynamic human rights lawyers have relentlessly fought to secure the rights of those detained by the state in the Delhi Riots. The Leaflet's MEGHA KATHERIA spoke to some of them to record the challenges they faced in their fight to secure justice for their clients. The Leaflet tips its hat all the lawyers who have represented the accused in the Delhi riots cases.
—-
A year ago, the country was captivated by protests against another set of controversial laws by a group of citizens who felt their voices had gone unheard by the government.
Following the alleged attack at Jamia Millia Islamia by the Delhi Police, a group of young lawyers formed a pro bono legal service to help protestors detained by the police for participating in the anti-CAA protests.
A few days later, standing at the Jama Masjid with a copy of the Constitution in hand, Bhim Army chief Chandrashekar Azad had lashed out against the police brutalities on students of Jamia Milia Islamia.
Later that night, at police stations across Old Delhi, including Seemapuri and Daryaganj, lawyers tried to calmly meditate with a reportedly uncooperative police force to learn the names of detainees and allow them legal representation. It was only after intervention by the Chief Metropolitan magistrate later that night that the juvenile detainees were released and adults were allowed to meet the lawyers.
This was only the beginning of a long fight with the state.
After around a month when anti-CAA protests were still going strong, the national capital witnessed gruesome communal riots in its north-eastern parts. The lawyers mobilised to help the survivors of the riots and those detained by the police who were allegedly accused of rioting.
“Later that night, at police stations across Old Delhi, including Seemapuri and Daryaganj, lawyers tried to calmly meditate with a reportedly uncooperative police force to learn the names of detainees and allow them legal representation.
Advocate Tamanna Pankaj who is associated with the group United Against Hate observed, "It is important for lawyers to go on the ground and observe. Many of the families whom we met during fact-finding missions were eager to speak to us. They felt ki koi toh aaya jo sunna chahta hai ( at least there is someone who wants to listen to our story). We noticed a massive need for lawyers as well as legal awareness and education."
Many of the arrests and bail hearings took place during the pandemic. Some lawyers even made a representation to the Delhi High Court seeking directions to lower courts and police on detention, arrests and bail during the pandemic.
"One of my clients was arrested under 23 FIRs, but I only came to know about the other 22 through him after many months. Since the pandemic, productions are taking place before the Magistrates within jail premises. After my client realised he was being produced nearly every day in a different case, he asked one of the DLSA lawyers, stationed there to provide legal representation, to make a list of these cases and conveyed it to his father," recalled Advocate Maneka Khanna, one of the signatories to the representation.
One of the lawyers that The Leaflet spoke to said, "The lawyers of the accused did not have access to these courts. We did not know how long the remand had been extended and when the next date of production was.
“"To be fair, the courts and judges too were figuring out how to deal with the extraordinary situation. But these remand productions and hearings were very important for the family and the accused's lawyer to learn about the offence," the lawyer added.
We could not ensure that the Magistrates signed the case diary, as we would have in the regular physical production of the accused. Signatures of Magistrates in case diaries are an important manner of keeping an oversight on the police investigation and is a requirement in law."
The lawyer observes, "Extension of remand was often done in a routine manner, even though the law required that there must be an application of the judicial mind."
"To be fair, the courts and judges too were figuring out how to deal with the extraordinary situation. But these remand productions and hearings were very important for the family and the accused's lawyer to learn about the offence," the lawyer added.
Initially, only urgent cases were being heard. "What is urgent is at the discretion of the Administrative Officer. Many times we faced the difficulty of getting a matter listed despite it being a case of personal liberty," said Advocate Bilal Anwar Khan.
In many cases, the evidence in the cases is primarily based on phone record location, confession by the co-accused, and a witness statement by police officials.
“"Multiple FIRs have also been filed in similar cases by the police which contradicts the law. One of my clients has received bail in three but is in jail due to the other two FIRS even though they were all arising from the same incident," says Advocate Tara Narula.
"In some cases that I dealt with, the case relied solely on witness statements, which could easily be an instance of mistaken identity. Even in cases where the presence of the accused is established, the connection between that presence to the murder of someone in the vicinity is loosely made in my opinion. For example, the accused was spotted in a crowd around 4.30 pm and the murder took place later that night. The police have not been able to recover the arm used or identify who fired the bullet," said Advocate Maneka Khanna.
"Multiple FIRs have also been filed in similar cases by the police which contradicts the law. One of my clients has received bail in three but is in jail due to the other two FIRS even though they were all arising from the same incident," says Advocate Tara Narula.
In several cases, police constables themselves have been cited as eye-witnesses. The Delhi High Court in Irshad Ahmad's case and Kasim's case observed the unexplained delay in filing of a complaint by police officials until the injured had made the statement. The court granted bail to both the applicants since they were not seen in the video footage.
“He adds, "Our request for a copy of the footage was denied on grounds that it is with forensics. It becomes very difficult to argue for bail before the High Court after it is rejected by the lower court on the basis of a video that you haven't been able to examine."
Video recordings have played an important role as evidence in the cases. However, most lawyers that The Leaflet spoke to said that securing the video footage by the defense for examination has been an issue.
Shahid had sustained a bullet injury on his shoulder in Jaffarabad and was detained by police.
His lawyer, Advocate Bilal Anwar Khan narrates, "In his bail proceeding, a video was played in the courtroom of a rampaging mob. We don't know where and when the video was from. The Additional Solicitor General S V Raju pointed at one corner of the screen to argue that was Shahid."
"But I am the victim. My MLC is part of the FIR. FIR 50 records me as a victim!" Advocate Khan recalls arguing before the court for his client.
“When the court asked why no inquiry had been conducted, the police submitted that no cognizable offence was made out of the video. Rejecting this, the court ordered an FIR to be registered in the case and ordered the police to conduct a 'fair, independent and impartial' trial.
He adds, "Our request for a copy of the footage was denied on grounds that it is with forensics. It becomes very difficult to argue for bail before the High Court after it is rejected by the lower court on the basis of a video that you haven't been able to examine."
Yet, in Saleem's case, the lawyers had to push for the examination of his complaint despite the presence of video evidence. Saleem had filed a complaint against his neighbours Subhash Tyagi and Ashok Tyagi for firing at his house during the riots, but the police arrested him instead.
When the court asked why no inquiry had been conducted, the police submitted that no cognizable offence was made out of the video. Rejecting this, the court ordered an FIR to be registered in the case and ordered the police to conduct a 'fair, independent and impartial' trial.
With regard to confession by co-accused, Advocate Bilal adds, "It is interesting to note how in many cases neither have the co-accused met each other before nor spoken over the phone to prove any coordination. Many say that they have only met each other in Mandoli jail."
“Advocate Sarim Naved, who at that time representing Meeran Haider, told The Wire, "This FIR [FIR 59/2020] is like a blank cheque which can be encashed any time."
Points out advocate Maneka Khanna: "The standard response to these issues is that it will be decided at the stage of the trial. But there are only four special judges looking into the cases and they are overwhelmed with bail applications. When will they be able to proceed to trial considering the sheer volume of cases?"
The biggest question that the lawyers are still battling is FIR 59/2020 invokes the draconian provisions of UAPA for an accused student who the investigating agencies are calling the 'master-minds'.
Advocate Sarim Naved, who was at that time representing Meeran Haider, told The Wire, "This FIR [FIR 59/2020] is like a blank cheque which can be encashed any time."
While Kalita, Narwal, and Fatima have received bail in the other FIRs, they are still in judicial custody under UAPA. Safoora Zargar was granted bail on humanitarian grounds, and not the merits of the application, on account of being pregnant.
“So, while the court must only record its opinion that reasonable grounds exist or not, UAPA requires the court to decide on bail based on whether the accusations are prima facie true i.e ascertaining at a pre-trial stage the veracity of the evidence.
A Delhi court has taken cognisance of the charge sheet filed against Sharjeel Imam and Umar Khalid. Their case will now proceed to trial. But, they continue to be in jail.
While under ordinary criminal law 'bail, not jail' is the norm, UAPA creates scope to flip this rule.
In regular bail, the court must look if reasonable grounds exist that the accused committed the offence, nature, and gravity of the charge, risk of fleeing, personal character, risk of tampering witness or evidence, and the likelihood of repeating the offence. UAPA adds a special ground to the existing condition of ordinary criminal law. Under Section 43D(5) it says no accused shall be released unless the Public Prosecutor has been given an opportunity of being heard and if there are reasonable grounds for believing that the accusations are true.
“Advocate Tara Narula told The Leaflet, "There is a sense of weariness amongst lawyers on how they are being perceived in their representative capacity."
So, while the court must only record its opinion that reasonable grounds exist or not, UAPA requires the court to decide on bail based on whether the accusations are prima facie true i.e ascertaining at a pre-trial stage the veracity of the evidence.
Advocate Mehmood Pracha, whose office was recently raided by Delhi police, told The Wire, "It ['source information' basis of FIR] is hearsay of a person who is not going to depose in court. He is already hidden, whether he exists or not. It could be a cock-and-bull story. This is the amount of evidence they have."
Advocate Tara Narula told The Leaflet, "There is a sense of weariness amongst lawyers on how they are being perceived in their representative capacity."
With most cases awaiting bail and trial at the brink of the horizon, the struggle by the lawyers is far from over. But the admirable dedication and passion for rights with which they have proceeded to secure the rights of their clients deserve accolades.
Advocate Tamanna very aptly opined, "So many lawyers from seniors to juniors are actively working pro bono without any recognition. Especially women lawyers. They are all under surveillance now but they are still representing the needy. They come as a ray of hope in the legal fraternity."
We couldn't agree more with her.
(Megha Katheria is a sub-editor at The Leaflet.)