Umar Khalid's bail hearings, first at the sessions court and now at the Delhi High Court, are a good representation of the state of India's criminal justice system.
A questionable case, long delays, interminable pre-trial detention, no likelihood of a trial (let alone a conviction) in sight.
On top of the general problems with the justice system that have led to this situation, Khalid's continued incarceration, like that of the other accused in the Delhi Riots conspiracy case as well as the Bhima Koregaon matter, is a result of the draconian Unlawful Activities (Prevention) Act – the UAPA.
When a person is accused of terror offences under the UAPA, then the courts cannot grant them bail if there are reasonable grounds to believe that the accusations against them are prima facie true, as per Section 43D(5) of the Act.
Given the implications of a virtual embargo on bail like this, one would have thought that the constitutional courts would look to ensure it can't be misused to keep people in jail without a conviction, that it would only apply when there was genuinely sufficient material to make out a serious case.
Instead, as explained here before, the Supreme Court in the case of NIA vs Zahoor Ahmed Shah Watali in 2019, held that the courts should not go into the details of the evidence and whether it is admissible, but look at the "totality of the material" produced by the investigating agency.
While this may seem reasonable on paper as this is for the stage of bail and detailed examination of evidence is only supposed to take place at trial, the ruling has had severe consequences.
Since judges are told to ascertain whether the accusations are prima facie true only from the totality of materials without assessing the evidence, investigating agencies just need to make sure the allegations made against an accused tick the right boxes to satisfy an accusation of terrorism, and an accused cannot then be granted bail.
It doesn't matter how flimsy the evidence is, how tenuous the link between the accused and any actual violence or action – the Watali judgment says the courts cannot take that into account, even if it's staring them in the face.
This is why Siddique Kappan can't get bail even though the Uttar Pradesh Police's mammoth charge sheet against him is just full of surmises and bizarre comments about how his coverage of anti-Muslim violence shows he is trying to stoke communal tension.
This is why the Bhima Koregaon accused can't get bail (on merits) even though evidence is mounting that incriminating material was planted on their computers, and that much of the material against them is made up of laughably on the nose 'letters.'
And of course, this is why Umar Khalid was denied bail by the sessions court, even though there are serious questions about the case against him, and the one overt act which he can be proved to have committed – making an anti-CAA speech at Amravati – does not disclose any terrorist offence, as the Delhi High Court acknowledged at the last hearing.
Evidence Against Umar Khalid and the Watali Judgment
The sessions judge who denied Khalid bail, Amitabh Rawat, after perusing the charge sheet and other materials brought on record by the prosecution, held that the accusations against the student activist appeared to be prima facie true. As a result, he had no choice but to deny Khalid bail.
The material against Khalid consists of the Amravati speech, the minimal messages he sent on the DPSG WhatsApp group that are central to the police case, but most importantly, a set of statements by protected witnesses.
These witness statements include claims about Khalid conspiring with other co-accused, including Sharjeel Imam, Tahir Hussain, and Khalid Saifi, to orchestrate the riots.
Various witnesses, from tea sellers to biryani deliverers, claim to have been present at the time Umar Khalid was involved in the discussions to organise chakka jams, escalate the anti-CAA protests into violence and make preparations for the same, and give instructions to other conspirators.
Without these witness statements, the Delhi Police will have little to no case against Khalid, since his messages on the WhatsApp groups under scrutiny don't disclose any such things, and he was neither present at the time of the riots nor do call records corroborate the police's narrative.
But if the witness statements are taken at face value, then, going by the Watali judgment, the accusations against Khalid are prima facie true, and bail is not possible for him.
Khalid's lawyer Trideep Pais had made detailed submissions in the sessions court to pick holes in these witness statements, showing discrepancies between the statements made by the same witness at different times, the delay in taking some of these statements, and the lack of specifics about everything except what Khalid is supposed to have said.
The sessions court said that it could not consider any of these potential issues with the evidence at the stage of bail, and that these would have to be left till the trial.
In paragraph 19 of the Watali judgment, the apex court said that when it came to deciding whether the accusations against an accused are prima facie true:
"For that, the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance."
The Delhi High Court bench of Justices Siddharth Mridul and Rajnish Bhatnagar has also indicated clearly to Khalid's lawyers that they will not be able to scrutinise the witness statements in any great detail while considering Khalid's case.
And yet Pais has continued to make arguments about the witness statements to the court during the hearings, including a detailed examination of the statement of protected witness 'Bond' last week.
While that may sound a bit like a demonstration of Albert Einstein's definition of insanity – “doing the same thing over and over again and expecting different results” – there is a logic to it that could allow for some sanity to enter UAPA bail hearings once more.
As things are currently viewed, because of Watali, the courts must not examine the evidence, no matter how dubious it may be.
What this means is that even when the police have nothing to tie a person to a crime, if they can get a few witness statements (not even necessarily to a magistrate under Section 164 of the Code of Criminal Procedure) that parrot their claims against an accused, then a person can remain locked in jail for years even if the flimsiness of the evidence means an eventual acquittal.
The possibilities for misuse of this are obvious – whether you consider Khalid's to be an example of such misuse or not. All it would require is for the police to threaten or cajole a potential witness to say something against an accused, no matter how ludicrous, and their constitutionally guaranteed liberty can just disappear.
Is This Really Inevitable?
But what if that wasn't how Watali needs to be interpreted?
Pais has pointed the court to paragraph 17 of the Watali judgment during his arguments to say that the court doesn't have to just blindly accept the investigating agency's narratives.
In paragraph 17, the Supreme Court said that "the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence."
Since contradicting/overcoming/disproving the material can only happen at trial, courts interpret Watali to mean that the police narrative just has to be accepted.
However, the very next sentence in the judgment adds something to all this:
"It must be on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted." (emphasis added)
According to Pais, this does leave some room for the courts to examine the police's material and take a call on whether the material is "good and sufficient." It cannot go into questions of admissibility, but it can point out that the material doesn't inspire confidence.
"Watali judgment clearly says that while you do not employ external methods to contradict chargesheet material, statement in itself must be good and sufficient. That is what the special judge missed. The special judge said if there is a statement, I'll consider it." Pais argued.
For instance, one of the witness statements goes into great lengths about what Khalid is supposed to have said at one meeting – but doesn't name any other person who was there
Another witness statement claims that WhatsApp groups like the DPSG were set up at Khalid's initiative, but at the same alleged meeting, there were multiple people who openly took up activities in connection with the anti-CAA protests, who were not made accused in the case
In yet another statement, the witness goes into details about how Khalid told co-accused Meeran Haider and Khalid Saifi to organise a protest site at Khureji – but call records show they were not present at the place at the same time
"No witness statement or material whatsoever, even the call details, don't match... Can you imagine the extent to which they have construed things," Pais contended. "I can show 10-15 paras like this which are without any basis, which make it clear that that the statement is absolutely fabricated. Material is being fabricated intentionally to create prejudice against me."
The key thing to realise here is that Pais is not just making the argument that saw Ishrat Jahan get bail from the same sessions judge in this case, or that led to the Delhi High Court granting bail to Asif Iqbal Tanha and Pinjra Tod activists Devangana Kalita and Natasha Narwal.
In those orders, the courts found that even if the police's allegations against them were considered to be true, they did not disclose terrorism offences under the UAPA, and therefore the bar on granting bail in Section 43D(5) did not apply.
This is how multiple high courts have granted bail to UAPA accused in the last year, from the Gauhati High Court's order in favour of Akhil Gogoi, to the Bombay High Court's order that mere discussions and advocacy cannot amount to a terror offence unless there is incitement of violence.
What Pais is arguing is that the police's material doesn't have to just be taken entirely at face value. When considering the totality of the material, the court does have the power to ask if the material is "good and sufficient."
In Khalid's case, where there is no other material to support the police narrative except the witness statements, the court should have the power to consider if the witness statements are seriously flawed.
Yes, the court cannot look into questions of admissibility – unless a statement is recorded before a magistrate for instance, it cannot be used as evidence at trial (though other evidence recovered pursuant to it may be allowed).
But even though this means that statements can't be discounted entirely, there should be no reason for them to be just accepted as is.
If this argument is accepted by the Delhi High Court, it could be a game changer in cases like this, and become a valuable precedent to prevent misuse of the UAPA. While the courts will still not be allowed to go into the absolute minutiae of the evidence and material brought by an investigating agency, they will no longer be powerless in the face of a stitch-up.
Of course, even if the Delhi High Court were to agree to this interpretation of the Watali judgment, the matter will inevitably be taken up in the Supreme Court, which will have the final say on whether this more liberal interpretation is possible.
While the apex court's track record when it comes to challenging misuse of the UAPA (or predecessor legislation like TADA or POTA) isn't necessarily the best, it did hold in February 2021 in the KA Najeeb case that the UAPA bail embargo does not prevent courts from granting bail when fundamental rights of an accused have been violated – for example where there is a long delay.
This may not be enough to indicate a change of heart on the UAPA, but in light of the sedition hearings and a (hopefully) improved understanding of the way in which legal provisions are being misused, the court might be more willing to allow the building in of safeguards to prevent the abuse of the bail embargo.
Either way, Khalid's hearing, which will continue in July after the high court's summer vacation ends, has become a key battleground in the fight for civil liberties.