New Delhi: After playing out like a bitterly contested trial spanning 17 hearings in eight months, the bail arguments for political activist Umar Khalid in the Delhi riots conspiracy case concluded at the same point from where they started: a speech he gave in the northeastern Maharashtra town of Amravati on 17 February 2020, a week before communal violence erupted in India’s capital.
On 3 March 2022, the police and prosecution made another attempt to impugn the speech on which they have built a case that alleges 34-year-old Khalid, a PhD from Jawaharlal Nehru University, was the mastermind behind the riots that claimed 53 lives and left over 500 people injured, and chargesheeted him for terrorism, sedition and murder among other crimes.
The prosecution did this by introducing a fresh allegation on the day his defence lawyer was closing his rebuttal arguments: that Khalid gave the speech in contravention of an order issued by the Amravati authorities, denying him permission to speak.
This fresh allegation did little to address the questions that additional sessions judge Amitabh Rawat had pointedly asked special public prosecutor Amit Prasad, a day earlier: what was wrong with the “content” of Khalid’s speech and why of the many students and activists who protested against the Citizenship Amendment Act (CAA), 2019, did the Delhi police hold a few of them responsible for the rioting in northeast Delhi in February 2020.
With the arguments for and against Khalid’s bail concluding on 3 March 2022, and Rawat reserving the order for 14 March and then deferring to 21 March earlier today, Article 14 revisited eight months of court hearings and chargesheets in the Delhi riots conspiracy case.
We found that a seeming lack of direct and circumstantial evidence has led to a pattern of the prosecution making far-fetched connections and unsubstantiated claims to fit a predetermined narrative of criminalising the anti-CAA movement and its leaders, and dropping them when they are proven unequivocally false by the defence.
Of the 53 people killed in the communal violence, two-thirds were Muslim. Of the 18 people accused of instigating the riots and facing charges of terrorism under the Unlawful Prevention Activities Act (UAPA), 1967, and of murder, sedition, and over two dozen other crimes under the Indian Penal Code, 1860, 16 are Muslim.
Khalid’s speech at Amravati referred to Mahatma Gandhi’s principles of non violence and civil disobedience, the attacks on Indian Muslims since the Bharatiya Janata Party came to power in 2014, and the impact of the Muslim women of the Shaheen Bagh on the anti-CAA movement and the psyche of the minority community. “The most important thing we have found in the past 50 days is courage,” he said. (Full speech available here).
The case built against Khalid and other anti-CAA activists is regarded by legal experts to be a bellwether episode in determining what constitutes terrorism and sedition, the major crimes of which they are accused, and could set precedents in similar cases related to not just the anti-CAA protests but similar protests nationwide.
Senior Supreme Court lawyer and the first ever woman additional solicitor general of India, Indira Jaising, told Article 14 that if charges were to be framed under the UAPA, it would set a precedent for a public protest, even if one were to accept the prosecution’s case that it resulted in communal violence, to be tried as a terrorist act, punishable with death or life imprisonment.
“Prosecution should be for legal reasons and probable cause,” said Jaising, referring to the UAPA. “Prosecution has become a weapon in the armour of people who decide whom to prosecute and whom not to prosecute and they invoke provisions which are intended to deny bail.”
“The motive may be to eliminate dissent, but as a constitutional lawyer, I’m concerned about the abuse of power, and it is a gross manipulation of power to use the criminal justice system with impunity for getting rid of people who are opposing you,” said Jaising.
Bias, Falsehoods, Conjecture: Experts
Two years after the Delhi police said that Khalid was the mastermind behind the Delhi riots in February 2020, their case against him has devolved into attacking his character and the anti-CAA movement with bias, falsehoods, inferences and conjectures that, experts said, have no place in a courtroom.
Our review of the hearings for and opposing bail for Khalid since August 2021 and the chargesheets in the conspiracy case of the Delhi riots, show that so far, the prosecution’s case against Khalid stands on a handful of WhatsApp messages that he has neither written nor were sent to him, two conspiracy meetings alleged by witnesses shown to be unreliable, and a speech that is perfectly legal.
Some examples of prosecution arguments:
– Khalid is not the “atheist” that he claims but an “unapologetic proponent of political Islamic extremism” who was “one of the main conspirators” behind a plot akin to the “9/11” terror attacks in the United States.
– The “facade of secularism” could be deduced from the fact that Khalid was a member of a WhatsApp group called MSJ (Muslim Students of JNU), only speaking of Muslim lynchings in his Amravati speech, and knowing a co-accused who knew someone who was part of the Students of Jamia (SOJ) group, which put out Facebook posts that said things like “Law of Allah is above all else,” “Babri Masjid will remain a masjid” and “la ilaha illallah. (“There is no god but Allah).”
– In a hearing on 24 January 2022 , Prasad said, “If you are an atheist, and you are studying in JNU, which vouches for its secular colour, why are you joining a Muslim students of JNU group? If you have nothing to do with religion then why are you joining that group?”
– The anti-CAA protests were a “facade of secularism” and this could be deduced from the location of the protest sites in “poorest of poor” neighbourhoods in “Muslim-dominated areas” and their proximity to local mosques.
– The “facade of secularism” of the CAA protesters could be deduced from a photograph that shows a book on the Rashtriya Swayamsevak Sangh (RSS) kept on a table at a gathering where some of them are present, and a message from an activist exhorting “non-Muslims” to go to the protest sites after the riots. In a hearing on 31 January 2022, Prasad said, “What is this RSS book doing here? I would put a question to myself.”
– The anti-CAA protests were “not organic” because they were organised by college students, activists and civil society leaders, who forced Muslim women and children to sit in the dozens of protests sites, with the ultimate goal of orchestrating “disruptive chakka jams” (roadblocks), "bringing the government of India to its knees", and forcing them to repeal the CAA and call off any potential national roll out of the National Register of Citizens (NRC).
– Six messages sent from a co-accused to Khalid from 5 January 2020 to 22 February 2020 showed that he was coordinating the running of the protest sites. (Khalid never responded to a single message, and the co-accused introduced himself twice in the messages, suggesting that Khalid did not know him).
– There was a “secret” meeting held at Seelampur on the night of 23-24 January where Khalid called for instigating violence, and no photos were available before the filing of the chargesheet in the case. (The chargesheet includes photos of the meeting and sources them to the “Facebook of one of the participants”).
– Khalid was “desperate” to speak in Amravati on 17 February 2020 because he wanted to make a call for instigating violence ahead of Donald Trump’s visit on 24-25 February 2020. (Khalid refers to the visit of the former president of the United States for 42 seconds in a close to 20-minute speech and makes no call for instigating violence).
– The WhatsApp messages of an activist saying the model of inviting speakers and artists to the protest sites was “unsustainable” and the next phase of protests would be “confrontational”, followed by the Mahila Ekta Yatra, a spontaneous and poorly planned march by women to protest sites in the days after Trump’s dates to visit India were announced, was proof of a conspiracy to riot. “Mahila Ekta starts and damroo (small drum) stops,” Prasad said, using a pejorative for the speakers and artists at the protest sites.
– The fact that Khalid was in Bihar when the violence erupted in Delhi, and the absence of physical participation or recovery from his phone, showed that the “veteran of sedition” learnt to “wipe off all evidence” after a sedition case slapped on him by the Delhi police in 2016 and was proof of guilt.
– A WhatsApp message by Khalid on 24 February 2020, relaying a message from a senior police officer about calling off a protest that other activists were planning to hold outside the police headquarters, was proof that the officer knew “real time” who was behind the riots. (If that were true, Khaild’s lawyer, senior advocate Trideep Pais, asked why the police officer was not made a witness in the case, why an FIR was not registered against Khalid until 6 March 2020, and why he was arrested in September 2020).
– The roadblock at Jafrabad started by women activists and local women protesting the CAA on 22 February 2020 caused the Delhi riots. (The first information report (FIR) for the roadblock was not only registered two days later on 24 February, it does not mention any violent act. The women were forcibly removed as late as 7:30 pm 25 February, as the rioting was ebbing. Several other protest sites were cleared only after the Covid-19 lockdown. The Delhi police waited for five months before trying and failing to get the video footage from surveillance cameras in the area).
– In a hearing on 31 January, Prasad said that Jafrabad is where “maximum violence happened.” The locations of more than 700 FIRs (provided with the chargesheet) registered in connection with the Delhi riots show that far more cases were registered in the police stations of Khajoori Khas, Bhajanpura, Gokalpuri, and Karawal Nagar.
– A “flurry of calls” between the anti-CAA protesters after the communal violence started in Delhi was proof of a conspiracy to riot. (Not only was it normal for people to call each other when something of this nature unfolded in the city, Pais questioned how the prosecution could even make this assertion without analysing the volume of calls on other days).
– WhatsApp messages about the inability of the police to control the riots (well documented by the media), seeking accountability from the authorities, BJP leader Kapil Mishra’s inflammatory speech, the Bhim Army’s Bharat Bandh, and relief work, were proof that the anti-CAA protesters were building a narrative to cover up the conspiracy.
Calling it a “totally malafide investigation” by the Delhi police, clear from several orders that have been passed by the Delhi High Court and the lower courts, senior Supreme Court lawyer Prashant Bhushan, told Article 14: “These are not legal arguments, these are arguments of prejudice. This is the prosecution of dissent.”
The Delhi police reports to the ministry of home affairs, headed by home minister Amit Shah of the BJP.
‘Somewhat Superficial, Tainted Investigation’: Former SC Justice
Former Supreme Court Justice Madan Lokur said the inability of the police to prevent the riot, and then to effectively investigate it, were reasons for a “somewhat superficial and tainted” investigation.
“I do get the feeling that the police is trying to cover up its inability to prevent the riots by coming out with theories to blame some of those who don’t deserve it and protect some of those whose conduct deserves to be closely scrutinized,” Justice Lokur told Article 14.
One of the strangest aspects of the case being investigated by the Delhi police special cell is that Khalid was named in the FIR for the conspiracy case (FIR 59) registered on 6 March 2020, but not arrested until September 2020.
Co-accused Sharjeel Imam, a PhD student at JNU, was taken into custody in January 2020 in connection with the speeches he made during the anti-CAA movement, a month before the riots in February 2020, but he was arrested in FIR 59 in August 2020, based in part on the material from his phone that the police had a month before the riot.
Mumbai-based criminal lawyer Payoshi Roy told Article 14 that the high volume of disclosure statements (confessions) by the accused, which have no evidentiary value unless they lead to physical recovery of evidence, was a sign of a weak case, and the fact that several of them were similarly worded suggested “fabrication”.
While the chargesheet has fairly incriminating statements by protected police witnesses alleging a conspiracy to plan riots, Roy noted that not only were these given months after the communal violence by people who claim to have been present during conspiracy meetings, but after some of the accused were arrested, and delayed statements are looked at with a fair amount of suspicion.
Roy pointed out that police witnesses in the conspiracy case under the UAPA being investigated by the special cell do not appear in other cases under the IPC, dealing with the same allegations and incidents.
“Why did the local police stations investigating these cases not find them? Why has the special cell (a Delhi police unit) found them? This is suspicious,” said Roy. “All these things really show the malafides of the investigation.”
A study of 16 police cases called Framed Damned Acquitted: Dossiers of Very ‘Special’ Cell (15 of them investigated by the special cell)—published by the Jamia Teachers’ Solidarity Association in 2012—found the special cell had been “indulging in fabricating evidence, planting evidence, flouting procedural safeguards, manufacturing terror threats and terrorists”.
‘Reverse Engineering Of The Chargesheet’
Over the past eight months, Pais, Khalid’s lawyer, has shown that there are three kinds of allegations in the chargesheet for FIR 59; assertions that have no criminality, allegations that have no supporting evidence, and allegations where the supporting material is at variance.
On assertions that have no criminality, Pais has said that there is nothing criminal about being a member of or messaging in a WhatsApp groups populated with students and activists who were part of the anti-CAA movement, but given the prosecution’s strategy to criminalise these groups in order to prove conspiracy, he had to show that he was either not a member or barely active in them.
On allegations that have no supporting evidence, Pais has shown there was no evidence to support the police allegation that two WhatsApp groups — the MSJ and JCC (Jamia Coordination Committee of which he was not even a member) were started at Khalid’s behest.
Refuting the prosecution’s fresh allegation at the Karkardooma court complex in Delhi on 3 March, Pais said that two years after registering FIR 59 in March 2020, blaming Khalid and his “provocative” speeches for the riots, the Delhi police were still trying to find something illegal about the only speech—of numerous ones he had delivered—they had cited in the chargesheet.
Pais said the order issued in Amravati was illegal because The Bombay Police Act 1951, which provided the legal basis for the order, did not provide for banning individual speakers, and even if it did, there was still nothing illegal with the speech made by Khalid.
As for Prasad’s contention that Khalid was “desperate” to speak on the 17 February 2020 because he wanted to “give a call” for inciting violence ahead of Trump’s visit to India on 24-25 February, Pais pointed out that permission was first sought by the organisers of the event in Amravati on 10 February 2020, a day before the dates for his visit were reported on 11 February.
“How much reverse engineering has happened in this chargesheet,” said Pais. “You register it on 6 March 2020 and we are still finding material to support it in 2022.”
“The fact that I gave a speech contrary to an illegal order is becoming terror (sic) in Delhi. How desperate the prosecution is,” said Pais. “Is there something wrong with my speech? No. There are worse speeches that I can show you from the internet right now where people have not been prosecuted. So let us not clutch at straws to implement such a harsh law against a person when you have no material.”
FIR Based On Clip Shared By BJP Spokesman
On the first day of bail arguments on 23 August 2021, Pais said that when FIR 59 was registered on 6 March 2020, all the police had was a clip of Khalid’s speech shared on 2 March 2020 on Twitter by Amit Malviya, who heads the information technology cell for the BJP. That clip was picked up by two television channels—Republic TV and News18—and the police only travelled to Amravati to get the raw footage of the speech five months later in July but did not place the video as evidence.
In the clip that Malviya tweeted a week after the riots, Khalid is heard saying: “We promise that when Donald Trump comes to India on the 24th, we will tell him that the prime minister of India and the government of India is working to divide India, is destroying the principles of Mahatma Gandhi, and we will tell him that the people of India are fighting against the rulers of India, and if the rulers of India want to divide India then people of India will stand for uniting it. All of us will come out on the streets. Will you come out?”
While there is nothing illegal about this clip, it was posted by Malviya with the message, “Was the violence in Delhi planned weeks in advance by the Tukde Tukde gang?” (A term used by the right-wing ecosystem to describe people with an alternative vision of the country, especially critics of the BJP government and its leaders).
Calling it an “explosive clip” from “gang member” Umar Khalid, Republic TV played it twice and said, “he is making that open call even for violence…”
In bail arguments on 28 January 2022, Prasad said, “My learned friend (Pais) referred to The Trial of the Chicago Seven (an American movie released in 2020). What was more relevant to be referred to was probably the incident of 9/11, which is very well reflected.”
In rebuttal arguments on 2 March 2022, Pais, referring to the chargesheet for FIR 59, said, “This chargesheet is not about facts. It is a narrative first written to influence public opinion based on a story that the prosecution wants to peddle. Then, they said, ‘let's find material to find it.’”
“This chargesheet is a pack of lies,” he said.
“Mini Trials” For Getting Bail Under UAPA
FIR 59 invokes four sections of the UAPA, 25 sections under the IPC, two sections of the Prevention of Damage of Public Property Act, 1984, and two sections of the Arms Act, 1959. It is one the 750 FIRs registered in connection with the Delhi riots, and is closely followed because it deals with who planned and orchestrated the communal violence.
So far, the prosecution and defence have presented arguments for and opposing bail, and would have other substantive arguments prepared for the trial. However, both sides have acknowledged conducting “mini trials”, with the defence pointing to the volume of the chargesheets, the number of accused, and this being a UAPA case where bail is rarely granted by the district courts.
Manu Sebastian, managing editor of Live Law, a legal news website that live tweeted the bail hearings, said they followed the Delhi riots conspiracy case closely because they have reporters covering the lower courts of Delhi, and it was an “important case.” In light of the criticism of the Delhi police targeting anti-CAA protesters by means of this case, Sebastian said, “It is a litmus test for the Indian judiciary whether it will go with the police version or will it apply its mind.”
In a judgment that was met with criticism for limiting the ability of the courts to grant bail in UAPA cases, the Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali (2019), while reversing the bail granted by the Delhi High Court to Kashmiri businessman Zahoor Ahmad Shah Watali, accused of funding terrorist organisations, said that judges had to rely on the allegations presented in the FIR and the chargesheet in UAPA cases without engaging in a detailed analysis of the evidence.
In Thwaha Fasal vs Union of India, and Union of India vs Allan Shuaib (2021) while restoring the bail granted by a trial court that was reversed by the Kerala High Court in a UAPA case involving two students accused of supporting Maoists, the Supreme Court said that “mini trials” cannot be conducted, but bail can be granted if, after examining the material on record, there are no reasonable grounds for believing the accusations to be prima facie true.
In June 2020, additional sessions judge Dharmendra Rana denied bail to student activist Safoora Zargar, who, following public outrage over the jailing of a pregnant woman, was granted the same by the Delhi High Court after the police did not object to it on “humanitarian grounds”.
Rawat has denied bail to student activists Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, and former mobile phone salesman Faizan Khan, on the grounds that the allegations against them appeared prima facie true. They were later granted bail by the Delhi High Court on the grounds that no prima facie case of terror was made out against them, with Justice Mridul Siddharth and Justice Anup Jairam finding that the chargesheet “does not contain any specific, particularised, factual allegations” that warrant invoking of the UAPA.
While Khalid has been lodged in Tihar jail since September 2020, other anti-CAA protesters, Khalid Saifi, Ishrat Jahan, Meeran Haider, Gulfisha Fatima, and Sharjeel Imam, have been incarcerated for even longer.
Live Law’s Sebastian pointed out the chargesheet against those incarcerated have been filed, and there was no danger of the accused tampering with documentary evidence, such as the WhatsApp messages on which the police have relied, if they were to be granted bail.
Experts have pointed out that across the country, from Malayalam journalist Siddique Kappan to the anti-CAA protesters, the police are invoking the UAPA to prevent people from getting bail in cases where there is little evidence and the investigation is poor. In the Delhi riots conspiracy case, some of the accused were rearrested in FIR 59 after receiving bail in other IPC cases.
Given the past trend of invoking the erstwhile counterterrorism law—the Terrorist and Disruptive Activities (Prevention) Act, 1987—TADA —against minorities in the aftermath of communal riots, Manisha Sethi, a sociologist and author of Kafkaland: Law, Prejudice and Counterterrorism in India, said: “It was hardly surprising that they have invoked UAPA against Umar and others.”
“This case allows for the criminalisation of political speech, dissent, and certain social and religious groups,” said Sethi.
Neither Criminal Nor Communal: Defence Lawyer
Lawyers for the accused have pointed out that it is legal to organise and mobilize people for protests. Furthermore, chakka jams, even disruptive chakka jams marking dissent, are protected by the Indian Constitution.
In what has been the most “disruptive chakka jam” in recent memory, farmers from Punjab, Haryana and Uttar Pradesh blocked three borders of Delhi for a year before the Narendra Modi government repealed three controversial farm laws.
Lawyers have said there was nothing communal about more Indian Muslims joining the protests given how the anti-CAA movement was born out of how the law and the NRC could impact undocumented Muslims.
On the final day of arguments on 3 March, Pais said: “When you have a protest, there is something illegal you do and that is why it is sanctioned by the Constitution as a form of dissent. If we all have to sit at home, then how is it a protest. The point is, is it terror?”
Lawyers have also pointed to what has been perceived as a communal language and tone of the police investigation and the prosecution’s arguments.
In a rebuttal hearing on 3 March 2022, Pais said that the prosecution had made “some very unkind statements” about Khalid. “The twist that is given is that being Muslim itself is a problem,” he said. In a hearing on 3 September 2020, Pais said, “If there is anybody who is giving anything a communal colour, it is the author of this chargesheet.”
Conspiracy Of Silence: Prosecutor
To mitigate what appears to be a seeming lack of evidence to prove conspiracy and the role of the anti-CAA protesters in it, Prasad, the prosecutor, used the phrase “conspiracy of silence,” arguing that the accused have “masked” the planning of the conspiracy.
The conspiracy can be shown, according to Prasad, through messages posted in WhatsApp groups of the anti-CAA movement and statements of protected witnesses who speak of “secret meetings” between the key conspirators as well as their efforts to polarise poor Muslim neighborhoods and prepare them to riot.
Indian jurisprudence acknowledges that conspiracies are seldom open affairs and direct evidence is hard to come by. But it exacts a very high standard of circumstantial evidence to establish a “meeting of minds”.
In State through Superintendent of Police, CBI/SIT vs Nalini and Ors, 1999, the Supreme Court said “each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible,” and “mere knowledge, even discussion, of the plan would not per se constitute conspiracy”.
In Noor Mohammad Mohd. Yusuf Momin vs State of Maharashtra, 1971, the Supreme Court said, "...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts”.
In rebuttal arguments on 16 February, senior advocate Rebecca John, who represents co-accused and social activist Khalid Saifi, told Rawat that there was no such thing as “conspiracy of silence” in criminal law.
John cited PK Narayanan vs State of Kerala (1994), where the Supreme Court said: “An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence.”
More than once during arguments opposing bail, Rawat asked Prasad how the prosecution could cite the WhatsApp messages sent by one accused to impute guilt, but also impute guilt to the dearth of messages from Khalid by alleging that he was too clever to message in a public forum.
Justice Lokur told Article 14 that he was not clear what the expression “conspiracy of silence” meant, noting that “circumstantial evidence must be reliable, since it is not direct evidence, and it must lead to only one conclusion. If two or more conclusions are possible, then the accused must get the benefit of doubt”.
Pais pointed out that it was “absurd” to suggest that his client was secretly planning a riot, given how he was constantly under media scrutiny and monitored by the police since he was out on bail in the 2016 sedition case.
“It’s not like I’m not on your radar. I’m on bail. You are following my movements. Media is reporting every speech made by me,” said Pais. “Where is the question of making this bare statement that I was planning a conspiracy? It doesn’t make sense.”
‘Does UAPA Need To Be Invoked?’
In a rebuttal hearing on 16 February, John, Saifi’s lawyer, asked whether there was any legal basis to the police invoking UAPA in the Delhi riots conspiracy case.
John argued that it was incumbent on Rawat to determine whether the UAPA was applicable because the counterterrorism law does not apply to all communal riot cases where it is sufficient to use IPC provisions. In Usmanbhai Dawoodbhai Memon and Others vs State of Gujarat (1987), John noted, the Supreme Court ruled that TADA, which lapsed in 1995, did not apply to communal riots cases.
Accepting the state’s untenable allegation for the sake of argument, John said, “Even then your honour has to see whether the offence is triable by ordinary procedure, isn’t the IPC sufficient or does the UAPA need to be invoked?”
While granting bail to Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha in June 2021, a Delhi High Court bench of Justices Mridul Siddharth and Anup Jairam said that the UAPA was only to deal with the matters that have a “profound impact on the ‘Defence of India’—“nothing more and nothing less”.
Even if one were to assume the state’s case was true—inflammatory speeches, chakka jams, instigation of women protesters and other actions, crossed the line of peaceful protests—it would not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA, Justices Siddharth and Jairam said.
Judicial Criticism Of The Delhi Police
In a steady stream of observations and orders over the past two years, judges in various Delhi courts have castigated the police for their investigation into the Delhi riots, calling the probes and submissions “absolutely evasive,” “lackadaisical,” “callous,” “casual,” “farcical,” and “painful to see,” as Article 14 reported in September 2021.
In October 2020, while granting bail to Faizan Khan, who worked as a mobile phone salesman before he was arrested in FIR 59, Justice Suresh Kumar of the Delhi High Court said that offences under the UAPA were not made out, and case against him was built on “bald statements” and did not appear to be “prima facie true”.
In June 2021, while granting bail to students activists—Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita—Justices Siddharth and Jairam said there was no evidence linking them to the riots, offences under the UAPA were not made out, the Delhi Police could not build a case with “superfluous verbiage, hyperbole and stretched inferences”. The State “in its anxiety to suppress dissent and morbid fear that things may get out of hand” had “blurred the lines between the constitutionally guaranteed right to protest and terrorist activity”, they said.
Before he was transferred in October 2021, additional sessions judge Vinod Yadav chastised the Delhi police over a police witness lying under oath, importing witness statements from one FIR to another, failing to register an FIR against one Mohammed Nasir’s complaint alleging he had suffered a gunshot wound (and imposing a fine on the police officers), clubbing FIRs together to protect the accused, the laxity in the investigation of an attack on a mosque, the “very poor standard of investigation in a large number of cases” and the “complete lack of supervision” of senior officers in several cases.
Allege And Drop
Over the past eight months, the Delhi police have silently dropped allegations shown to be without merit.
In FIR 101/2020, a case of rioting in the Khajuri Khas area, in which Khalid is charged for criminal conspiracy, rioting, promoting enmity between different groups, the Delhi police were caught fibbing in the chargesheet filed in June 2020, in which they said that Khalid, social activist Khalid Saifi, and former Aam Aadmi Party (AAP) councillor Tahir Hussain met on 8 January 2020 at Shaheen Bagh to discuss the funding for engineering riots when Trump visited India on 24-25 February. The Quint pointed out that the first media report on Trump’s visit only appeared in The Hindu on 13 January, five days after the 8 January meeting. The dates of the visit were reported on 11 February.
While they did not link the alleged 8 January meeting to Trump’s visit in the chargesheet for FIR 59 filed in September 2020, the police offered no explanation about dropping it or why the police witness — “Saturn” — gave varying accounts of the alleged meeting in four statements for FIR 59 and FIR 101 in five months.
After no mention of the meeting in the first statement, the witness in subsequent statements changed whether he was inside the building or outside it, he only said it was the office of the Popular Front of India (PFI), a Kerala-based Islamist organisation, in one, and never said anything about the conversation.
Before he was incarcerated in September 2020, Khalid said that he had never met Hussain or been to the PFI office, and he was not asked about the meeting when the special cell questioned him on 31 July 2020. “This is absolutely false and does not have an iota of truth…” he said.
In a rebuttal hearing on 18 February 2022, Pais said: “There is absolutely no response by the PP (public prosecutor) in the manner in which this witness Saturn has contradicted himself and shown himself to be a barefaced liar if at all he made those statements voluntarily.”
Granting bail to Khalid in FIR 101 in April 2021, Yadav said the two different versions of “Saturn” in the chargesheet “does not appeal to the senses” and “chargesheeting the applicant on the basis of such insignificant material is unwarranted.” Granting bail to Khalid Saifi in FIR 101 in November 2020, Yadav reprimanded the “total non-application of mind by the police which goes to the extent of vindictiveness.”
Half a dozen allegations in the chargesheet for FIR 59 were dropped by the prosecution in arguments and written submissions after he showed them to be untrue, according to Pais, including those about the MSJ and JCC WhatsApp groups being formed at Khalid’s urging, and that he instigated a riot at Jamia Millia Islamia University on 15 December and asked a co-accused to instigate violence at Shaheen Bagh the same day.
“Is it convenient to drop allegations which are quite vicious against me when it suits you because you don’t have any material to support it,” said Pais.
Ordinarily, the police have three months to investigate and file a chargesheet before a sessions court, but the UAPA allows an extension of 180 days. The long- drawn investigation and arrests over the course of several months interspersed with bail hearings where the defence is challenging the prosecution’s case have allowed the police to improve their case.
“You can see how blatantly they are trying to cover up for their inadequacies and how they are being improved on in the subsequent chargesheets,” said Roy, the Mumbai-based criminal lawyer.
Vikas Upadhyay, a Delhi-based advocate on record, said that a trial court order for prosecuting an allegedly malafide prosecution can be done under section 211 or 219 of the IPC, but only at the end of the trial after prosecution evidence is properly evaluated by it. “It can’t be done at the stage of the bail, when prosecution evidence is yet to be tendered in trial,” he said.
‘Multiple Narratives’ Of The DPSJ WhatsApp Group
To prove conspiracy, the police have relied on a fraction of WhatsApp messages from 17 February to 24 February on the Delhi Protest Support Group (DPSG).
On this group, an anti-CAA protester turned police witness accused “outsiders”, “elitist” civil society and Pinjra Tod, a collective of women college students co-founded by accused Kalita and Narwal, of blocking roads, shouting provocative slogans, spreading “communal hatred”, creating “a mob mentality”, distributing chilli pepper, inciting violence, and endangering the lives of locals.
A second anti-CAA protester, on whose messages the police have relied, called the violence a “concerted plan” and asked whether the group was ready to identify and condemn the groups and individuals who instigated violence.
In rebuttal arguments on 16 February, senior advocate John said that she, too, was at one stage a member of the DPSG group, which had 67 feuding members .
“Everybody had a viewpoint , some were in agreement, some were in agreement,” said John. “The only common thread is their opposition to the Citizenship Amendment Act and the fact that they are talking about protest sites across the city”.
John showed Rawat other WhatsApp messages of the “star witness” on the DPSJ group, on whose messages the police had relied, where he strikes a very different chord with regards to the protest and asked why the prosecution had not brought these to the court’s attention.
In these messages, which John read out at a hearing in February, the police witness calls for mobilisation of people to support local women protesting at Khureji Khas, speaking of “police paramilitary Sanghis” attacking peacefully protesting women and saying that “Khureji is becoming the new Shaheen Bagh. Please join them”.
“This is their star witness who turns for reasons best known to himself on 17 February and makes some allegations,” said John. “But on the 13 January, this ‘inorganic protest’ seems to be validated by their star witness. It doesn’t seem to be inorganic. It seems very organic to me.”
The messages of the police witness from 17 to 24 February shown by the prosecution were “in isolation,” John said, while showing other messages from the DPSG WhatsApp group which “presented another story”.
John read out messages where the police witness said that they were in “great trouble” after the BJP’s Kapil Mishra announced a counter rally in Jafrabad, and how “BJP MLAs and leaders and goons” were using “Jafrabad, Pinjra Tod, and RSS confrontation,” to attack peaceful protest sites. One member of the WhatsApp group said that “right wing goons” were bringing in stones in trucks to throw at protesters at the Maujpur metro station.
“The only reason that I rely on these messages is because there is no single narrative in this WhatsApp chat group,” said John. “There are multiple narratives.”
Unreliable Witnesses For The Seelampur Meeting
In the chargesheet for FIR 59, the police alleged a “secret meeting” in a “secret office” at a house in New Seelampur, Delhi, on the night of 23-24 January, where Khalid allegedly directed that the anti-CAA protests should “ultimately escalate to riots,” resulting in the “spilling of bloods (sic) of policemen and others”, and bringing the government of India “to its knees so they (sic) are forced to repeal the CAA-NRC”.
The police alleged that Khalid told other anti-CAA protesters that local women should start stockpiling knives, acid, bottles, stones, chilli powder, and other dangerous articles for rioting.
On the allegation that Khalid called for the mobilisation of local women to collect dangerous articles, Pais said there had been no physical recovery from him and the chargesheet did not include the statement of a single woman who had deposed that she was made “cannon fodder” in the protest. In a hearing on 21 November 2021, Pais said: “They talk of hundreds, thousands. Not one woman says we were procured, paid, we were made to sit there, we were ornamental, we were a line of defence. Not one of them.”
The statements of the six witnesses the police relied on for the Seelampur meeting are at variance with each other. Some of them said different things in statements to police and while deposing.
In hearings in November 2021, Pais asked why these police witnesses, who claimed they knew of the alleged conspiracy and collection of “dangerous articles”, one of whom even said that he was reporting to the station house officer of the Seelampur police station since mid January, did not say anything until months after the violence.
A statement by police witness “Echo” shows that he made no mention of the 23 January meeting in the police statement of 16 April 2020.
Seven days later, while deposing before a magistrate on 22 April 2020, “Echo” said that Khalid gave a “provocative speech” at the Seelampur protest site, and then at the office of the protesters in Seelampur, he told a co-accused that “speeches would not work,” “roadblocks were the only way forward,” “ blood would have to be spilled,” and the “government would have to be brought to its knees.”
In rebuttal arguments on 2 March 2022, Pais pointed out that while Echo alleged that Khalid spoke of “spilling of blood,” the police added “of the policemen” in the narration of the chargesheet. “Please see how poorly the chargesheet keeps improving,” he said.
On police witness “Sierra”, whose statement from 23 June 2020 says that he was a tea seller who went to the office of the protesters in Seelampur to sell tea, where he heard Khalid conspiring to incite riots, Pais noted how “ridiculous” it was to suggest that his client, the alleged “silent whisper” and “mastermind” of the riots, would reveal the plot before a tea seller who was not part of the meeting.
Pais asked how it dawned on the police to go looking for the tea seller, while noting how “miraculously” he emerged after he was summoned by them four months after the violence, and how he “miraculously” knew the names of the anti-CAA protesters.
Pais said: “I’m the conspirator who does not send a text message because I’m silently conspirating (sic) to leave no trace and in front of a chai wallah I give out my entire strategy,” he said. “And then they say my plan is on the scale of 9/11.”
(Betwa Sharma is managing editor of Article 14.)