(This piece was originally published on 21 September 2022 and has been republished from The Quint archives ahead of the Delhi High Court verdict in Umar Khalid's bail plea.)
"For two years now, I have been hearing this announcement every night - “naam note karein, in bandi bhaiyon ki rehaai hai” (make note of the names, these inmates are being released). And I wait and hope for the day when I would hear my name. I often wonder, how long is this dark tunnel? Is there any light in sight yet? Am I near the end, or am I only midway through? Or has the ordeal just begun?"
Khalid, a former JNU student and political activist, is incarcerated under the draconian Unlawful Activities Prevention Act (UAPA) over allegations of involvement in the Delhi Riots 'Conspiracy' Case.
He recently completed two years in jail, but the road to trial still remains long and meandering, As per Khalid's own advocate’s submission, the case is still at the stage of supply of documents, and there are some 850 witnesses to be examined.
His bail plea at the Delhi High Court – before a bench of Justices Siddharth Mridul and Rajneesh Bhatnagar – comes after it was rejected by a trial court.
As per Section 43D(5) of the UAPA, a court cannot grant bail to someone who has been accused of an offence under Chapters IV and VI, if there are reasonable grounds to believe that the accusations against them are prima facie true. This makes the provision of bail very difficult for an accused in a terror-related case.
According to The Telegraph, former Patna High Court Judge Anjana Prakash has said that the UAPA does not adhere to the jurisprudence of “innocent until proven guilty”.
She also said that "a court is not to grant bail (to an accused) until it is satisfied that no case is made out against him...is an absurd order for the simple reason that at the stage of investigation it is the prosecution which collects evidence against the accused and on that basis submits a chargesheet."
So what submissions did Umar Khalid's counsel make in support of his bail plea across multiple hearings? And what has the prosecution said?
Summary: Submissions by Khalid's Lawyer
Over several hearings at the Delhi High Court, Senior Advocate Trideep Pais, appearing for Khalid, has made an array of submissions, including the point that Khalid had no "criminal role" in the Delhi Riots, nor did he have any "conspirational connect" with the other accused in the matter.
The arguments in favour of bail for Khalid include:
Prosecution was “making stuff up as it went along”, the Delhi Police chargesheet was rife with inconsistencies and parts of it were without basis
The prosecution has nothing to show that there was a “meeting of minds” for committing a crime
The conspiracy alleged by the prosecution should pertain to the violence that ensued in Delhi, and not “raising issues of injustice” as there was nothing illegal in raising such issues
Khalid's Amravati speech, which the Delhi Police alleges he was "desperate to give" and which forms the basis of the allegations against him, categorically called for non violence and did not lead to violence anywhere
Alleged Inconsistencies & Misrepresented Facts
Through the course of the hearings, Senior Advocate Pais listed out several instances where the prosecution allegedly misrepresented facts.
Further, alleging glaring inconsistencies in the prosecution’s case, Pais argued that that the prosecution had initially accused Khalid of giving a speech inciting violence before a crowd of 700 people on 17 February 2020, in Maharashtra’s Amravati. This allegation, Pais pointed out, was based on a statement by a witness pseudonymously called ‘Bond’.
Pais went on to challenge Bond's statement on various grounds including that the statement was not corroborated by any of the 700 other witnesses present when the speech was delivered.
He also said that it was not connected in any way to the violence that erupted during the Delhi riots and that Bond’s statement was based on hearsay.
Pais underlined more inconsistencies by arguing that the initial allegation against Khalid was that he had delivered an inciting speech. However, in its supplementary chargesheet, the prosecution had said that Khalid was a ‘silent whisper’ in the 2020 riots.
Further, Pais pointed out that no evidence was found in the chargesheet which corroborated the allegations of Khalid meeting with other ‘co-conspirators’ in the riots, collecting protest funds, and planning to make protests women-centric to make it harder for the police to intervene.
'Is Opposition to Scrapping Article 370 or CAA, Illegal?'
Arguing that no 'linking of minds' was established by the prosecution and that Khalid was not even present during any of the violent acts being referred to, Pais said that Khalid, in his Amravati speech, only raised issues which many have raised before.
According to LiveLaw, he said:
“The only overt act attributed to me is (the Amravati) speech. And just one line "sadko par utar aaye". That was heard by many, it was a public event. It never lead to violence. “
Pais also asked the court if “opposition to scrapping of Article 370 or triple talaq or CAA (is) illegal in itself?"
According to LiveLaw, he went on to say:
"To show that two persons are opposed to CAA, there are various people who have opposed CAA, there are former judges who have made statements but other than showing commonality of thinking, nothing else shows meeting of minds for committing a crime or some kind of physical manifestation of agreement, as held by the Supreme Court, its not there."
It may be pertinent to point out, here, that the apex court itself is presently in the process of hearing challenges to the Citizenship Amendment Act.
Responding to prosecution's claim that that Khalid was part of five contentious WhatsApp groups, Pais submitted mere membership in Whatsapp groups (that have been named by them) does not make Khalid criminally liable.
Further, Pais said that Khalid remained silent in two such groups, and in the remaining groups, as well, only four messages could be attributed to Khalid. These four too neither incited nor called for riots, Pais pointed out.
What the Prosecution Argued...
Defending the trial court’s order denying bail to Umar Khalid, Special Public Prosecutor Amit Prasad said that the trial court has dealt with every recorded evidence and said that it will not deal with infirmities at this stage.
The Trial Court, had reportedly taken the view that Khalid was connected with many accused and his presence in several WhatsApp groups had to be viewed in totality.
Further, the prosecution reportedly alleged:
Speeches made by various accused carried a “common factor”, the essence of which was to create a sense of fear in the Muslim population
Umar Khalid’s Amravati speech was a ‘calculated speech’ because not only did it refer to CAA and NRC, but also other issues specifically pertaining to one community
The prosecution also went on to claim that the sit-in protest sites were planned and situated in close proximity to masjids and that the Shaheen Bagh protest was neither an independent movement nor driven only by women protesters.
The Possibility of Bail
Now it remains to be seen which view the Delhi High Court takes in consideration of Umar Khalid's bail plea. It also does not need much reinforcing that bail under UAPA is tough. However, that does not mean that it has not been granted before and cannot be granted now.
As recently as on 20 September 2022, a Chief Justice of India (CJI) UU Lalit led bench of the apex court, granted bail to Kerala Journalist Siddique Kappan, despite the stringent UAPA provisions he too was booked under. While refraining to comment in the order on the "progress and investigation and material gathered by the prosecution in support of its case", the top court did, however, consider "the length of custody undergone by the appellant" and "the peculiar facts and circumstances" of Kappan’s case.
Thereby, after nearly two years of incarceration, Kappan was granted bail. It is a different matter that Kappan continues to remain incarcerated, as he awaits a Lucknow court's verdict in a bail plea in a PMLA case against him (which was filed with the alleged offence under UAPA, in which he has now got bail, being the predicate offence).
During the course of Kappan's UAPA bail hearing, the apex court had also verbally asked the state:
"Every person has a right to free expression. He is trying to show that the (Hathras) victim needs justice and is raising a common voice. Will this be a crime in the eyes of the law?”
Khalid's case is not very different from Kappan's. He had exercised his right to free expression, his Amravati speech was the only overt act attributed to him, he has been languishing in custody for two years (with bail proceedings spanning months).
Besides given the large gaping holes in the prosecution's case against Khalid – the lack of cogent evidence to establish the witness testimonies, the Whatsapp groups that barely carried any messages from Khalid (and none of criminal import), and the fact that Khalid was not even present at the time of the riots – his conviction under the UAPA seems highly unlikely.
So, why should Umar Khalid remain in jail? Why should, what many Human Rights advocates are calling the transmutation of 'process' into 'punishment' be permitted in his case? Why should his fundamental rights be ignored?
Besides, in the KA Najeeb case, the Supreme Court held that that a provision like Section 43D(5) of the UAPA “does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.”
As explained here, this means that if a constitutional court (ie a high court or a Supreme Court) sees that someone’s fundamental rights are being violated as a consequence of their arrest or prolonged incarceration, the court can grant them bail.
Meanwhile, in his open letter, Khalid writes that he feels pessimistic sometimes and “at times I also feel lonely.”
His mother, in an event organised to mark the second anniversary of his imprisonment says:
“Umar could have had a comfortable life, yet he chose to stand with the oppressed and question the oppressor eye to eye…. This is his crime.”
(With inputs from Supreme Court Observer, LiveLaw, Scroll, The Wire, Telegraph and PTI.)