Delhi High Court denies bail to Umar Khalid

The bench comprising Justices Siddharth Mridul and Rajnish Bhatnagar chose to give a narrow interpretation to the word ‘revolution’, equating it to only violent protests, although the term has been widely used in India to denote change. Former chief ministers of Tamil Nadu, the late M.G. Ramachandran and the late J. Jayalalitha had been hailed by their followers as ‘revolutionary leaders’, while the veteran socialist political leader, the late Jayaprakash Narayan had given a call for ‘total revolution’ in the days preceding the declaration of Emergency in 1975 to mobilise people. 

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THE Delhi High Court on Tuesday rejected the bail application of activist and former Jawaharlal Nehru University (‘JNU’) student, Umar Khalid facing prosecution under the stringent Unlawful (Prevention) Activities Act (‘UAPA’), in connection with the Delhi riots of 2020. A division bench of Justices Siddharth Mridul and Rajnish Bhatnagar found the allegations against Khalid prima facie true, and hence, the embargo under Section 43D(5) of the UAPA was held justified.

Justice Mridul was also part of a bench that granted bail to Khalid’s co-accused, student activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal last year.

Khalid has been languishing in jail since September 13, 2020.

Writing the judgment for the bench, Justice Bhatnagar said that Khalid’s name had been recurring from the beginning of the conspiracy till the culmination of the ensuing riots.

“Admittedly, he was a member of the WhatsApp group of Muslim students of JNU. He participated in various meetings at Jantar Mantar, Jangpura Office, Shaheen Bagh, Seelampur, Jaffrabad and Indian Social Institute on various dates. He was a member of the [Delhi Protest Support Group]. He referred to the visit of the president of USA to India in his Amrawati Speech. The [Call Detail Record] analysis depicts that there had been a flurry of calls that happened post riots amongst the appellant and other co-accused. The cumulative statement of the protected witnesses indicates the presence and active involvement of the appellant in the protests, engineered against the [Citizenship (Amendment) Act]/[National Register of Citizens]”, the bench observed.

It added that 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 and stones, among other things, were used, resulting in the admitted and sad loss of 53 precious lives and the destruction of property worth several crore rupees. These protests and riots prima facie seem to have been orchestrated at the conspiratorial meetings held from December 2019 to February 2020, it noted.

The bench rendered the finding that 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.

“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 the 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 premeditated plan and as such, the same would prima facie be covered by the definition of ‘terrorist act’.”, the bench held.

Referring to the chargesheet, the bench found that Khalid was in constant touch with other co-accused persons, including activist and scholar Sharjeel Imam, who arguably, as per the bench, is at the head of the conspiracy. The bench thus said that it was difficult to form an opinion that there are no reasonable grounds for believing that the accusation against the petitioner is prima facie not proved.

Khalid’s counsel, senior advocate Trideep Pais argued that there was absolutely no consensus between people who were opposed to the Citizenship (Amendment) Act (‘CAA’). They are divergent people belonging to different schools of thought, he submitted. He further explained that Imam criticised a secular movement against the CAA and did not agree with it, and that Khalid was being lumped with a person who called for a deeply communal protest against the CAA.

Pais sought to contend that there was no ideological meeting of minds, and that the lower court had misinterpreted witness statements to draw a connection between Khalid and Imam, whereas the two had never even spoken to each other.

Responding to this contention, the bench said that “there exists a string of commonality which runs amongst all the co-accused. It is admitted position that both the appellant and Imam are members of the same WhatsApp group. It is also an admitted position that the duo participated in the Jantar Mantar protest. There is statement of various protected witnesses, that speak to the presence of the duo at several meetings including in the one held at the office of [the Popular Front of India]. This court cannot test the veracity of witness statements at the stage of bail under the Unlawful Activities (Prevention) Act, 1967 in light of the [Supreme Court’s] decision in Watali“.

During the hearing, the bench questioned the slogan ‘Inquilabli Salam” (‘Revolutionary Salute’) raised by Khalid in his Amravati speech. Justifying it, Khalid argued that these words were used for greeting everyone and inviting the spirit of revolution, and that these words were used in his speech in the context of people standing against a discriminatory law and protesting against it; by no stretch of imagination could the use of the words ‘inquilab‘, ‘krantikari‘, or ‘revolution’ be termed as a crime.

The justification did not find favour with the bench, which opined that, “The call to revolution may affect many beyond those who were visibly present, which is why this court finds it apt to mention [French lawyers and statesman Maximilien F.M.I. de] Robespierre, who was at the vanguard of the French Revolution. This court is of the view that possibly, if the appellant had referred to Maximilien Robespierre for what he meant by revolution, he must have also known what revolution meant for our freedom fighter & first prime minister. The very fact that Pandit Jawaharlal Nehru believed that democracy has made revolution superfluous after independence and how it meant the complete opposite of a bloodless change. Revolution by itself isnt always bloodless, which is why it is contradistinctly used with the prefix – a ‘bloodless’ revolution. So, 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. “

The bench also reminded that under the UAPA, it is not just the intent to threaten the unity and integrity of the country, but the likelihood to threaten its unity and integrity; 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, within the meaning of Section 15 (terrorist act) of the UAPA. It added that under Section 18 (punishment for conspiracy, etc.) of the UAPA, not merely the 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, 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 bench held.

Click here to read the Delhi High Court’s full judgment.

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