Even as Ishrat Jahan – the former local councillor accused of being involved in the conspiracy to cause the Delhi Riots – got bail from a Delhi sessions court on 14 March, a number of her co-accused in the case will be hearing the results of their bail pleas in the coming days.
Khalid Saifi, Gulfisha Fatima, Umar Khalid, Sharjeel Imam – the courts will be passing orders on the pleas filed by them and others accused in the larger conspiracy case under FIR 59 (which includes terror offences under the Unlawful Activities Prevention Act ie UAPA) from 16 to 22 March.
But is the bail order by additional sessions judge Amitabh Rawat in favour of Jahan, and a cause of optimism for her co-accused? Or does it instead lay down the very grounds that will be used to reject their pleas?
Why did Ishrat Jahan Get Bail?
In Judge Rawat's 38-page order, he describes the Delhi Police's allegations in the charge sheets against her and the others and their narrative about how the riots in North East Delhi were orchestrated, in some detail.
The assessment of Ishrat Jahan's alleged role and whether she should be granted bail comes in paragraph 11 of the order.
The judge notes that under Section 43D(5) of the UAPA, there is an "embargo" against bail to those accused of terror offences under the Act. Under this section, the courts are barred from granting bail to any person accused of a UAPA terror offence if there are reasonable grounds to believe that the case against them is prima facie true.
He next sets out the specific allegations against Jahan in which he points out that she is not alleged to have created the idea for chakka jaams, or to have been part of the meetings or WhatsApp groups in which the conspiracy was supposedly hatched.
The anti-CAA protest site she was involved with – Khureji – was not in North East Delhi or contiguous to it. Her connection to the other accused is limited to some phone calls and being present at the Khureji site at the same time.
Some protected witnesses have given statements which state she made provocative speeches – though no details of incitement to violence are provided. She is also alleged to have received certain sums of money which were used at the Khureji site and also given to Khalid Saifi, which were then allegedly used in the riots.
In paragraph 12, Judge Rawat then says:
"The entire conspiracy as spelt out in the charge sheet, as far as it ascribes the role of accused Ishrat Jahan, who is a woman, for the limited purpose of bail application on a prima facie considerations, persuades this Court to allow the present application for bail despite the embargoes contained in Cr.P.C and UAPA."
This would seem to imply that the judge has held that while is not saying Jahan is innocent of any crime, the specific allegations as put forward by the police against her do not prima facie add up to terror offences under the UAPA, and hence she can get bail despite the general embargo under Section 43D(5) of the UAPA.
It should, however, be noted that this is not expressly or conclusively stated in the order.
Judge Rawat has not, in so many words, said that the allegations made against Jahan do not amount to terror offences, unlike what Justice Anup Bhambhani of the Delhi High Court had said when granting bail to Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita last year.
This lack of absolute clarity could become an issue if the bail order is appealed in the Delhi High Court and beyond, as without arriving at such a conclusion, the court could not have granted bail to Jahan.
Worrying Signs for Other Accused?
It should be remembered at the outset that this order could not automatically help the other co-accused who remain in jail at this time.
Because of the restriction in Section 43D(5), the courts have to examine the specific allegations against each accused separately when considering their bail pleas, and see if there are reasonable grounds to believe they are prima facie true.
The Delhi High Court had to do the same when considering Tanha, Narwal and Kalita's bail pleas last year, passing separate orders for each of them – even though the allegations against Narwal and Kalita were nearly identical.
The specific allegations against Jahan were of such a nature that the judge appears to have found that they don't amount to terror offences.
However, he also makes certain observations in the order which suggest that other co-accused in the case, particularly those made out as the masterminds of the whole conspiracy or who were heavily involved in WhatsApp groups and organisations like the JCC and DPSG, could find it difficult to get bail.
In paragraph 10 of the order, having detailed the allegations as per the chargesheets, the judge says:
"In the present case, as per the charge-sheet as discussed above, taken at face value, there was a premeditated conspiracy of the disruptive chakka-jam and a preplanned protest at 23 difference planned sites in Delhi which was to escalate to confrontational chakka-jam and incitement to violence and resulting in riots."
"The target was to block roads at mixed population areas and encircle the entire area completely stopping the entry and exit of citizens living there and then creating panic to attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riots and the same would be covered by the definition of terrorist act."
These statements by the judge are an acceptance of the police's case that the protests were meant to escalate and become riots, thereby falling into the definition of terrorist acts under the UAPA.
Although Justice Bhambhani's orders granting bail to Tanha, Narwal and Kalita for the Delhi High Court cannot be treated as precedent (thanks to a problematic Supreme Court order), his reasoning had raised important questions over when such activities can amount to terrorist activities, even when accepted as criminal offences.
Judge Rawat has accepted they do without any real scrutiny or analysis, and this is likely to be the position when the court considers the other bail pleas.
The police's accusations against those alleged to hatch those plans (and remember, all that is looked at at this stage are the allegations, not the evidence, thanks to the Watali judgment), will have to then be held to be prima facie true.
Which means the likes of Umar Khalid and Sharjeel Imam – who are alleged to have planned this all out in December 2019 and (in Khalid's and Tahir Hussain's case) then organised subsequent meetings where the conspiracy was fleshed out and instructions given – will be hit by the 'embargo' on bail in Section 43D(5) of the UAPA.
The judge also specifically notes that Jahan "is not a member of any organisations or incriminating Whatsapp group which plays a role in the entire conspiracy." These organisations and groups are then listed: Muslim Students of JNU (MSJ), Jamia Coordination Committee (JCC), Pinjra Tod, Students of Jamia (SOJ), Alumni Association of Jamia Milia (AAJMI) or DPSG.
But what about those who were members? Does the corollary of the argument for Jahan apply here, that if they are members, then they were involved in conspiracy to commit terrorist activities?
If so, the 'embargo' on bail in Section 43D(5) would apply to people like Khalid Saifi, who were active on those groups and in those organisations.
It is not certain what the court will hold in those other bail pleas, but if the analysis goes along the lines indicated in Ishrat Jahan's order, the signs are worrying for the co-accused.
Of course, decisions refusing them bail could still be overturned by the Delhi High Court, which can disagree with this interpretation of terror offences under the UAPA.
The other five accused to have obtained bail in the conspiracy case all had their pleas rejected by the sessions court – even Faizan Khan, a SIM card seller who was not connected to the other accused at all.
However, this will obviously mean that they will have to spend more time in jail while waiting for release, despite not being convicted, and even where the evidence against them is questionable.
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