A Saket court on Friday, 22 October, denied bail to Jawaharlal Nehru University (JNU) student Sharjeel Imam in a case relating to violence during anti-Citizenship (Amendment) Act protests near Jamia in Delhi, despite finding that the evidence presented to claim that he incited the violence was "scanty and sketchy".
Additional Sessions Judge Anuj Agarwal held that while there were "gaping holes" in the case of the Delhi Police, a speech given by Imam on 13 December 2019 at Jamia would still "tend to have a debilitating effect on the communal peace and harmony".
As a result, a case against him under Sections 124A (sedition) and 153A (promoting enmity/hatred between communities) of the Indian Penal Code (IPC) could still stand, and the judge said that he was not inclined to grant Imam bail in the case, noting:
"In my view, the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquility, peace and harmony of the society."
'No Link Between Imam's Speech & Violence'
On 15 December 2019, the Delhi Police claims that a large gathering of people near Jamia (initially around 2,500, eventually growing to 3,000-3,500) started marching from there to Parliament to protest against the Citizenship (Amendment) Act 2019.
After being stopped by the police near the Surya Hotel, they allegedly blocked traffic, attacked public and private vehicles, and attacked the police forces.
Imam was arrested in the case based on the disclosure statement of one of the people arrested in connection with this violence, Furkan. He claimed that Imam gave a speech on 13 December 2019 against the CAA and National Register of Citizens (NRC), which inflamed passions among the crowd, and which led them to commit violence two days later.
Along with the other accused, Imam was been booked under IPC sections for rioting and arson, provisions of the Prevention of Damage to Public Property Act, and provisions of the Arms Act. The JNU student was also booked under Sections 124A and 153A for his alleged role in fomenting the violence.
After reviewing the material presented by the police, the judge found that there was no "essential link" between the violence on 15 December and Imam's speech:
"Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam."
The judge observed that the evidence was "sketchy and scanty" and that the police version crumbled like a house of cards when the "imaginative thinking" and disclosure statement of Furkan were put aside. He criticised the case of the Delhi Police regarding Imam when it came to the charges of rioting, arson, etc, saying:
"The theory as propounded by investigating agency leaves gaping holes which leaves an incomplete picture unless the gaps are filled by resorting to surmises and conjectures or by essentially replying upon the disclosure statement of applicant/accused Sharjeel Iman and co-accused. In either case, it is not legally permissible to build the edifice of prosecution version upon the foundation of imagination or upon inadmissible confession before a police officer."
'But Speech Still Threat to Communal Harmony'
Despite finding this, the judge found that Imam's speech was "clearly on communal/divisive lines."
This was with reference to a part of the speech extracted in paragraph 12 of the order, where Imam was exhorting the Muslim community to protest strongly against the CAA, asking why cities in northern India had not come to a halt with protests, and calling for chakka jaams in Delhi.
The judge also refers to comments by Imam that fascism in India is not new and that the Constitution is itself fascist in aspects relating to cow protection, elections, president's rule, and definitions of certain communities.
The judge says that though the fundamental right to freedom of speech is on a high pedestal in India, the Constitution also places reasonable restrictions on this right "on the grounds of public order and incitement to offence."
After noting that one of the fundamental duties in the Constitution is to promote harmony and common brotherhood, the judge says that the freedom of speech "cannot be exercised at the cost of communal peace and harmony of the society."
There is no detailed analysis of why the quoted parts of the speech violate Sections 124A or 153A of the IPC, with the court saying it is not required to go into a meticulous examination of the evidence at the stage of bail.
The judge also begins the judgment with a quote from Swami Vivekananda:
"We are what our thoughts have made us; so take care about what you think; Words are secondary; Thoughts live; they travel far.”
It is not stated what the relevance of this quote is to the law on grant of bail.