BAIL CONTINUES TO EVADE UMAR KHALID’S NAME
Gursimran Kaur Bakshi
Umar Khalid, an activist and former Jawaharlal Nehru University student, who was arrested on September 13, 2020 sought bail on the grounds of delay and parity with his co-accused who was granted bail in June 2021.
Today (May29, 2024), a sessions court in Delhi denied bail to activist and former student of the Jawaharlal Nehru University (JNU) Umar Khalid.
He is accused of being one of the “masterminds” of the conspiracy along with 17 others to instigate violence and terrorism-related activities during the 2020 Northeastern Delhi riots. He was arrested on September 13, 2020 for various offences under the anti-terrorist legislation Unlawful Activities Prevention Act, 1967 (UAPA).
This is the second time Khalid has been denied regular bail by a sessions court.
Background
On February 23, 2020, communal violence broke out in Northeastern Delhi in the backdrop of the Citizenship (Amendment) Act (CAA), 2019 and the proposed National Register for Citizens (NRC) between supporters of CAA and those protesting against it.
According to the chargesheet filed by the Delhi police, Khalid delivered an inflammatory speech in Amravati, Maharashtra a week before the riots broke out.
Those arrested with Khalid, co-accused persons in the case, student activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, were granted bail by the Delhi High Court Bench comprising Justices Anup Jairam Bhambhani and Siddhartha Mridul in June 2021. However, a Bench also comprising Justice Mridul denied bail to Khalid in October 2022.
Charges against Khalid
Two first information reports (FIR) have been registered against Khalid.
In one of the FIRs, charges under Sections 147 (punishment for rioting) and 148 (rioting, armed with deadly weapons), 149 (every member of unlawful assembly is guilty of the offence committed in prosecution of common object) and 302 (punishment for murder) of the Indian Penal Code (IPC), along with charges under Sections 13 ( punishment for unlawful activities), 16 (punishment for terrorist act) and 18 (punishment for conspiracy) of the UAPA have been framed against him and 17 others.
Charges under the Arms Act, 1959 for the use of arms during riots have also been framed against him. Additional charges under Sections 124A (sedition) and 153A (promotion of enmity between groups on the ground of religion, race, place of birth, residence, etc.) of the IPC were also framed by the Delhi police in 2021.
This is the second time Khalid has been denied regular bail by a sessions court.
In another FIR, Khalid, along with others, has been accused of vandalism and arson. The FIR accuses Khalid of being part of a large crowd at Khajuri Khas in northeast Delhi that was pelting stones at people and the police and setting vehicles on fire.
While he was granted bail in the second FIR, he continues to be denied bail in the first FIR. On March 24, 2022, sessions court judge Amitabh Rawat denied bail to Khalid on the grounds that there is prima facie evidence of premeditated conspiracy. This evidence was primarily the WhatsApp chats which the prosecutor had used to allege that Khalid was part of a conspiracy to undermine the authority of the government.
An appeal against the session’s court Order was made by Khalid before the Delhi High Court in April, 2022.
Chronology of Khalid’s bail application
Khalid filed a special leave petition against the Delhi High Court’s Order before the Supreme Court on April 6, 2023.
On May 18, 2023, the division Bench of the Supreme Court comprising Justices A.S. Bopanna and Hima Kohli issued notice to the Delhi police represented by Additional Solicitor General S.V. Raju, returnable in six weeks.
On July 12, 2023, when the matter came for hearing before a Bench comprising Justices Bopanna and M.M. Sundresh, the Delhi police sought more time to file counter-affidavits.
Sibal objected to the counter-affidavits. He said: “In a bail matter, what counter is to be filed? The man [has been] inside for two years and 10 months.”The court agreed to adjourn the matter to July 24, stating: “Bail application may take one–two minutes.”
When the matter came up before Justices Bopanna and Bela M. Trivedi on July 24, 2023, Sibal circulated a letter of adjournment and the matter was adjourned by one week.
The matter was then listed on August 9, 2023 before Justices Bopanna and Prashant Kumar Mishra. However, Justice Mishra recused without any reason.
On August 18, 2023, the matter came up before another Bench. It was adjourned as it had been listed on a miscellaneous day.
The matter came up again on September 5, 2023, before Justices Trivedi and Dipankar Datta. The court postponed it to next week because Khalid’s advocate Kapil Sibal was unavailable.
The court gave the last opportunity to hear the matter on September 12, 2023. When the matter came up before a Bench comprising Justices Bose and Trivedi, they said that they would examine the bail application on documentary evidence.
According to the chargesheet filed by the Delhi police, Khalid delivered an inflammatory speech in Amravati, Maharashtra a week before the riots broke out.
The matter was listed for hearing on October 11, 2023. It came up the next day before the Bench of Justices Trivedi and Datta. The court stated that due to paucity of time, it would not be able to hear the matter.
To this, Sibal stated: “I can demonstrate in twenty minutes that there is no case at all.”
After this, the matter was listed for November 1, 2023.
Meanwhile, on October 20, 2023, another petition (Umar Khalid versus Union of India & Anr.) filed by Khalid challenging the constitutionality of several provisions of the UAPA came up before Justices Bose and Trivedi. They tagged it with the bail petition.
This matter came up again on October 31, 2023. Khalid’s petition was tagged with other petitions relating to Tripura violence. The counsels for the other petitions sought to de-couple Khalid’s petition from the rest of the batch. However, the court said it was going to hear all the petitions together.
Subsequently, Khalid’s bail matter came up before a Bench of Justices Trivedi and Satish Chandra Sharma on November 29, 2023. On a joint request of Sibal and the Delhi police, the court listed the matter for further hearing on January 10, 2024. On January 10, it was postponed to January 24.
However, on January 24, the Bench failed to hear the matter as it was sitting in a different combination post lunch on that day. The court adjourned the matter to January 31. It kept the matter “high on board”.
On January 31, the court did not take it up for hearing in the first half. After lunch, the court kept the matter to be heard on February 1 which was postponed again to February 7. The scheduled hearing was deferred again.
On February 14, Khalid withdrew his bail application and applied to a trial court which reserved its Order to be pronounced on May 28.
During the hearings, the prosecution alleged that many high-profile personalities including journalist Teesta Setalvad had tried influencing the bail hearing of Khalid on X (formerly Twitter).
Vehemently opposing the bail, the prosecutor had told the court: “WhatsApp chats also revealed that he is in the habit of creating media and social media narratives at the time of listing bail applications of the person booked in cases to clearly influence bail hearings.”
Bail under the UAPA: Jail not bail
Bail jurisprudence under the UAPA has come under severe criticism for its emerging trend of ‘jail and not bail is the norm’.
As per Section 43D(5) of the UAPA, bail shall be denied if, on perusal of the police diary or report, there are reasonable grounds for the court to believe that the accusations are prima facie true against a person.
The standard of prima facie is that the court cannot go into the probative value of the evidence. It could only form a prima facie opinion on broad possibilities per the Supreme Court’s decision in the National Investigation Agency versus Zahoor Ahmed Shah Watali (2019).
Bail jurisprudence under the UAPA has come under severe criticism for its emerging trend of ‘jail and not bail is the norm’
As per Watali, prima facie true means that the evidence on record must show the complicity of the accused, that is, the evidence must be good and sufficient to establish a given fact or chain of facts constituting the commission of an offence.
This reasoning was upheld by the Supreme Court in Gurwinder Singh versus State of Punjab & Ors (2024) where it stated that the legislature has prescribed a “low prima facie standard as a measure of the degree of satisfaction” to be recorded by the court when scrutinising the justifications of materials on record in UAPA.
A Bench of Justices M.M. Sundresh and Aravind Kumar said: “Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or case diary, the court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true.”
Another trigger for the widespread protests was the attack on students of Jamia Millia Islamia by the Delhi police.
The low threshold of scrutiny upon courts is inversely proportional to the burden of proof on the accused person because the Section 43D(5) embargo makes it impossible for the accused to reach the bail conditions.
Against this jurisprudence is the observation of the Supreme Court in Union of India versus K.A. Najeeb that the Section 43D(5) embargo runs independently of the Article 21 (protection of life and personal liberty) guarantees which protects the accused person against prolonged incarceration.
Contrary to Watali and Gurwinder is the July 2024 bail Order of the Supreme Court in Vernon Gonsalves and Arun Ferreira accused in the Bhima Koregaon Elgar Parishad conspiracy wherein it held that the court needs to ascertain the value of the evidence while granting bail under Section 43D(5).
However, a May 22 Order of Justices Bela Trivedi and Pankaj Mithal in Union of India versus Barakathulla (2024) upheld the Watali and Gurwinder reasoning.
Although contradictory, Watali, Gurwinder, Vernon and Barakathulla are all pronounced by two-judge Benches of the Supreme Court and the most recent of the law must prevail.
Scrutiny over Delhi police’s role in riots
The Delhi police came under serious scrutiny for its alleged role in the riots. As per a report of the independent fact-finding committee, Uncertain Justice: A Citizens Committee Report on the North East Delhi Violence 2020, the communal violence spread against the backdrop of the anti-CAA protests and turned into widespread riots.
Over the next few days, hundreds were left injured and over 53 died. The Delhi police arrested 1,300 people in over 758 cases and the trial is yet to begin in more than 50 percent of cases.
Although contradictory, Watali, Gurwinder, Vernon and Barakathulla are all pronounced by two-judge Benches of the Supreme Court and the most recent of the law must prevail.
The report, prepared by a committee led by former Supreme Court Justice Madan B. Lokur, indicated that the triggering point of the riots was the implementation of the CAA on December 12, 2019. It induced fear in the Muslim community over the possibility of a loss of citizenship stemming from the combined effect of the implementation of the CAA and potential exclusion from the NRC.
The report states that the police failed to take any punitive action against the hate speeches made by political leaders. The protests coincided with the Delhi assembly elections of February 2020, where divisive narratives such as framing anti-CAA protestors as anti-national and violent were spread by several political leaders, especially Bharatiya Janata Party (BJP) leaders Kapil Mishra, Anurag Thakur and Parvesh Verma.
In one of the rallies, Thakur instigated the participants to raise incendiary slogans. When he said, “Desh ke gaddaron ko (the traitors of the country), the crowd responded “goli maaro saloon ko (shoot them).” Gaddar was apparently a reference to the anti-CAA protestors.
The crowd’s response was a throwback to the statement first made by Mishra during a pro-CAA march in the city’s Connaught Place on December 20, 2020 when Section 144 of Code of Criminal Procedure was imposed.
On February 23, 2020, Mishra called a pro-CAA rally at Maujpur traffic signal, close to Jafrabad metro station where at least 500 people were staging protest against the CAA and gave a three days ultimatum to the Delhi police to remove the protestors blocking the traffic at Jafrabad and nearby roads. He warned that he will not let another ‘Shaheen Bagh’ be created in Delhi. In the evening, stone pelting incidents were reported near Maujpur.
BJP leader and member of Parliament from West Delhi, Parvesh Verma used another favourite trope of the Hindu Right, the alleged treatment meted out to Kashmiri Pandits by Kashmiri Muslim to rile up the crowd against the protestors. He said, “They will enter your house … abduct your sisters and mothers, rape them, kill them the way militants had treated Kashmiri Pandits.”
He added, “Lakhs of people gather there (Shaheen Bagh) and this fire can anytime reach households of Delhi … people of Delhi need to think about it and decide … that’s why today is the moment.”
It remarked that in its “anxiety to suppress dissent, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’.”
Another trigger for the widespread protests was the attack on students of Jamia Millia Islamia by the Delhi police. On December 15, 2019, police entered the university campus and detained more than a hundred students for their alleged involvement in the violent protests against CAA. As a result of a clash between the student protestors and the police, many students and police personnel were injured and 15 people were arrested.
While granting bail to Narwal, Kalita and Tanha, the court concluded that a prima facie case of terrorist activities and conspiracy is not made out against them. It remarked that in its “anxiety to suppress dissent, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’.”
Epilogue
Recently, the Chief Justice of India Dr D.Y. Chandrachud, while speaking at the inauguration of the Arbitration Center, Prayagraj and the launch of the book Courts of Uttar Pradesh, said: “There is a fear psychosis in our district judiciary. Both judges and members of the Bar will agree with me. I am not being critical but we have to introspect. The district judiciary is fearful of granting bail because, over a period of time, we have a culture of subordination between the high courts and the district judiciary. We have not created a footing of equality between the district judges and the high courts.”
Recently, in an interview on Unfiltered with Samdish, Khalid’s partner Banjyotsna Lahiri said that she sets “deadlines” with Khalid on the time-period after his release when she is not allowed to “fight” with him.
Those are the only deadlines in our hands, since we cannot set a deadline for when Khalid will get justice, she said.
Gursimran Kaur Bakshi is a staff writer at The Leaflet.