OPPOSING THE GRANT of bail to Gulfisha Fatima, Umar Khalid, Sharjeel Imam and other co-accused, the Delhi Police concluded its submissions on Friday, November 21, after arguing for the second consecutive day. The counterarguments had begun on November 18.
Day 1: ‘Riots were well designed, orchestrated’
Leading the charge for the Delhi Police, Solicitor General Tushar Mehta told the Division Bench led by Justice Aravind Kumar and comprising Justice N.V. Anjaria, that the 2020 Delhi riots, the deadliest religious conflict witnessed by the national capital in decades, were “not spontaneous” but rather “well-designed, well-crafted, well-orchestrated, pre-planned and well-choreographed riots” which were an attack on the nation’s sovereignty.
Mehta argued that the riots were the outcome of a systematic effort to divide society along communal lines, rather than mere agitations against the Citizenship Amendment Bill that turned violent. He argued that the accused, Sharjeel Imam, was responsible for instigating the Indian Muslims to unite and block roads to prevent milk and water from reaching the households in Delhi. And that Imam’s speeches reveal that he had called for a “chakka jam” in every city where Muslims reside.
He told the Court that the evidence recovered from an accused’s devices by the Delhi Police reveals discussions on how the property was to be damaged. He added that these discussions were taking place in WhatsApp groups of which the petitioners were members. Therefore, they were all part of a larger conspiracy, and it was part of their strategy to delay the trial, elude the merits and then ask for bail.
Mehta asserted that the Delhi Police was ready to complete the trial within six months.
Taking over, Additional Solicitor General S.V. Raju argued that the petitioners should not be allowed to take the defence of parity with other accused persons who got bail from the Delhi High Court, since the Supreme Court had, while dismissing the appeal thereof held that the High Court’s statutory interpretation of Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) was not to be treated as precedent.
Day 2 & 3: ‘Petitioners stalled commencement of the trial’
Continuing the arguments on November 20, Raju told the Court that the petitioners are themselves responsible for stalling the commencement of the trial, as they have sought repeated adjournments before the trial court, delaying the arguments on the framing of charges.
He relied on the precedents of the Supreme Court to argue that if the delay is caused by even one co-accused, not the prosecution, the other co-accused cannot take advantage thereof to ask for bail. He further submitted that in UAPA matters, a delay in the commencement of trial is not a sufficient ground for granting bail to the accused, even if he has been in jail for five and a half years; the Court can rather direct the trial court to expedite the hearing.
Raju clarified that he is arguing on delay as the Petitioners have confined their submissions to that and have not argued on the merits. He then played a video before the Court showing parts of different speeches delivered by Sharjeel Imam while addressing the anti-CAA/NRC protest rallies in Delhi and Aligarh.
In the video, Imam can be seen talking about the misuse of the Triple Talaq law to jail Muslim men, the judgment in the Babri Masjid case being against Muslims, and the abrogation of Article 370 in Kashmir. He states that the Courts have failed to safeguard the interests of Muslims and that the situation would be similar if the CAB is passed and the NRC is implemented in India. Therefore, he tells the protesters to express their grievances without fear and to exert pressure on the government so that the CAA bill is rolled back. For that, he asks them to block the Chicken’s Neck (the Siliguri Corridor) to partially cut off Assam from the rest of the country for at least a month or a half, and to observe pur-amn (peaceful) chakka jam in Muslim-majority areas to block the essential supplies to the rest of the cities.
Raju told the Court that Imam is an engineering graduate, and added that it has now become a “trend” for “doctors, engineers and intellectuals” to engage in anti-national activities.
“Intellectuals, when they guide and when they become terrorists, are more dangerous than the ground-level working terrorists because they are the brains. A poor and innocent person who blasts himself is misguided to that extent by the real brains. The intellectuals are the real brains,” he said as he berated the intellectual terrorists for engaging in nefarious activities after getting their degrees with the State's support/subsidy/funding, and using them to become doctors and engineers.
Staying on the subject of intellectuals, Raju further argued that there is a systematic track that whenever the bail matters of such terrorists are listed, a narration is spun across India that, “Oh! he is an intellectual, he has degrees, and he is being unnecessarily hounded”. Raju said that this is not the case, and if people saw between the lines, they would know that intellectual terrorists are more dangerous than the other not-so-intellectual terrorists.
“The ultimate aim was regime change,” Raju submitted as he informed the Court that the entire chargesheet is filed, which includes the transcript of the video that shows that Imam is the leading member of this conspiracy along with the others, as he is calling for violent protests, including the separation of Assam from India.
“I don’t think he used the word violent.” Justice Aravind retorted.
“Imam is asking people to be prepared to take lathis and injuries,” Raju submitted as he pointed out that lathis are used by the police when the mob turns violent; therefore, violence was implied. He further argued that Imam is also maligning the Supreme Court by criticising its verdicts in the Babri Masjid case, the abrogation of Article 370, and in the Triple Talaq case, and using the phrase, “nani yaad dila denge”.
He further argued that Imam and others were looking for opportunities to instigate the masses to effectuate this regime change. They were unable to garner enough support against the Babri Masjid verdict, the abrogation of Article 370 and after the Triple Talaq law was passed. However, they envisaged an opportunity in the CAA bill.
Calling it a red herring, Raju argued that the Petitioners used the CAA as a ruse to mislead Muslims into starting agitations across India and strangulating the economic progress of the country by strangling Delhi and Assam, and depriving the people of their daily necessities. He submitted that Economic Security is also a part of the UAPA Act.
Citing evidence from the 20000-page chargesheet filed by the Delhi Police, Raju submitted that the Petitioners had created four WhatsApp groups for the purpose of carrying out this conspiracy. The DPSG was the main group. The other groups, created by members of the DPSG, included the Muslim Students of JNU (MSJ), the Jamia Coordination Committee (JCC), and the Jamia Awareness Campaign Team (JACT). He informed the Court that the Petitioners discussed everything in these groups about organising protests and chakka jams, and how chakka jams are different from dharna, etc.
Appearing oblivious to the existence of community-specific social media groups, Raju added that Sharjeel Imam and Umar Khalid had torn apart the secular fabric of JNU by creating a “communal group” named ‘Muslim Students of JNU’.
He also informed the Court that the members of JCC and JACT were responsible for mass mobilisation to protest sites. They visited Muslim dominated areas, including North-East Delhi areas and instigated them to create 24*7 sit-in protests.
As per the Delhi Police, the Petitioners adopted a model of disruptive chakka jam in the name of protest, with the motive of en masse killing of police personnel and non-Muslims, and damaging public as well as private property by engineering communal riots. It informed the Court that Sharjeel Imam has written a thesis on riots and, as reflected in his speeches, possesses extensive knowledge about mobilising the masses, critical for engineering riots.
Discussing the role of Umar Khalid, the Delhi Police, represented by ASG Raju, told the Court that the only difference between him and Imam is that he had announced when the people were supposed to come to the streets. He had planned the protests to coincide with the visit of Donald Trump, the then-President of the United States of America, to get the attention of the international press.
ASG Raju said that this served an important purpose, as whenever the bail matter is scheduled to be heard, the New York Times does a story on it. Social media comes abuzz with support for the Petitioners, without realising that the “costume of intellectual or student is only a façade”. He further argued that in reality, the Petitioners are a “nuisance and thoroughly anti-national”.
Arguing further, Raju read from the chargesheet the excerpts of the speeches delivered by Khalid, where he states that the purpose of the protests was to show Trump that the government in power in India has no regard for the Gandhian principles and is trying to divide the people, whereas the people of India are prepared to keep the nation united.
He further argued that, as per the statement of a protected witness, Khalid had gone to the Jamia campus, where he had explained the difference between a Dharna and a Chakka Jam and called for a 24*7 chakka jam at Shaheen Bagh and Gate No. 7 of Jamia University. He instigated riots under the garb of chakka jam to force the government to take back the CAA bill. He also informed the Court that both Khalid and Imam were present in Jamia when the violence had occurred.
ASG Raju claimed that Umar Khalid had a history of inciting violence and, as far as Kashmir was concerned, he was the same person who had infamously delivered the controversial “Tukde Tukde” slogan at the Jawaharlal Nehru University in February 2016. And since he was caught, he has become more cautious.
Conversely, the slogan was never attributed to Khalid; he was rather accused of being one of the organisers of the event commemorating Afzal Guru (2001 Indian Parliament attack convict). Furthermore, the later investigations conducted by the Delhi Government and the university administration found that outsiders had shouted the slogan at the university, whereafter all the accused were granted bail. The trial in the case has not yet concluded.
The Delhi Police also informed the Court that the main chargesheet against all Petitioners except Imam and Khalid was filed on September 16, 2020, under Sections 302 & 307 IPC, 25 & 27 Arms Act, 13, 16, 17 & 18 of the UAPA and Sections 3 & 4 of the Prevention of Damage to Property Act. The cognizance of this chargesheet was taken on September 17, 2020.
A supplementary chargesheet naming Umar Khalid and Sharjeel Imam was filed on November 22, 2020, the cognizance on which was taken on November 24, 2020.
ASG Raju argued that there is no minimum sentence under Section 16(1)(a) of the UAPA, and the offence described therein is punishable by death or life sentence. He also argued that the Petitioners had not challenged the trial court’s order taking cognizance of the chargesheet, as required under Section 43D(5) of the UAPA.
He further argued that Section 43D(5) provides that if, on the application of the judicial mind, it appears that an offence has been committed, the accused will not be entitled to bail. The Section also states that no person in connection with offences described under Chapters 4 and 6 (which includes Section 16 of the UAPA), shall be released on bail unless the Public Prosecutor has been allowed to be heard. Furthermore, the proviso to Section 43D (5) states that if, after perusing the case diary or the report under Section 173 CrPC, the court believes that there are reasonable grounds to believe that the accusation against the said person is true, that person shall not be released on bail.
He submitted that in the instant case, the cognizance has been taken, the accusation is prima facie believed to be true, and the order of cognizance has not been challenged; therefore, the bail applications of the Petitioners must be rejected.
He also informed the Court that some of the Petitioners were accused of financing the riot, and the money trail is being investigated by the ED, which has acquired more evidence. He, however, did not place anything on record since it was not part of the Delhi Police’s chargesheet.
Raju submitted that the Petitioners intended to organise something on the scale of what happened recently in Bangladesh and Nepal. This was part of a large conspiracy, which resulted in 53 deaths and left 530 people injured, including policemen.
Notably, the dead and the injured mostly belonged to the Muslim community, as per the working brief report titled ‘Report on violence in Delhi 23/2 – 27/2/2020 and its aftermath’, filed by the London Story Foundation, a Dutch-registered think tank, before the Office of the United Nations High Commissioner for Human Rights (OHCHR). The report, prepared based on secondary media sources and verified through corroborations, states that the damage to property, including houses, shops and mosques, was mostly concentrated in the Muslim-majority localities. It further states that the violence was led by far-right Hindu fundamentalist groups who were identified by their trademark saffron clothes, chants, flags and other markers. It also alleges Police complicity in perpetrating the violence, the blockade of medical help to the victims, targeting of journalists, and sexual assaults across Delhi and Uttar Pradesh.
Lastly, the ASG submitted that the Petitioners should not be allowed to argue the merits in the rejoinder, as they had stated in the beginning that they would limit their arguments to parity and delay. To this, Justice Aravind clarified that the Petitioners had said that they would not argue on the merits at this stage; however, they are at liberty to formulate their strategy at the rejoinders as far as the merits are concerned.