Delhi: Today marks 1,000 days since political activist Umar Khalid, who holds a doctoral degree from Delhi’s Jawaharlal Nehru University (JNU), was jailed in the Delhi riots conspiracy case on 13 September 2020.
Khalid, 35, is among 18 people, including students and activists, who have been accused of using protests against the Citizenship Amendment Act (CAA), 2019, between December 2019 to February 2020, as a front to plan chakka jams (roadblocks), instigate communal riots, “bringing the government of India” to its knees, and stop the nationwide rollout of the National Register of Citizens (NRC).
The Delhi riots conspiracy case (first information report — FIR 59) is one of the 751 FIRs filed concerning the communal violence in northeast Delhi between 23 February 2020 to 25 February 2020. Fifty-three people were killed in the riots, two-thirds of them Muslim. Of the 18 people accused of planning the riots, 16 are Muslim.
The Delhi Police have filed chargesheets against those accused under four sections of the Unlawful Activities Prevention Act, 1967, 25 sections of the Indian Penal Code, 1860, two sections of the Prevention of Damage of Public Property Act, 1984 and two sections of the Arms Act, 1959.
As Article 14 reported in March 2022, the chargesheet and witness statements, extensive arguments for and against bail that lasted eight months in the district court in Karkardooma, and four months in the Delhi High Court, are riddled with fabrications, inconsistencies, witnesses who have demonstrably lied or changed their accounts to fit an apparently predetermined narrative to delegitimise the anti-CAA movement and some of the people (mostly Muslims) who opposed it.
In a series of cases, various Delhi courts granted bail in Delhi riots cases, while holding the police responsible for “vague evidence and general allegations,” a “shoddy probe”, “absolutely evasive”, and “lackadaisical” attitude; the police have been accused by various courts of investigations that are “callous”, “casual” and “farcical”, “poor” or “painful to see”.
In September 2021, lawyer Mani Chander read through 40 court orders and wrote in Article 14 about a trail of false statements, fabricated charges and police unaware of their own investigations.
The latest rejection of a prosecution in the Delhi riots case came on 8 June 2023, when a judge acquitted three Muslim men and criticised the police for clubbing several complaints with the case without investigation.
Difficult To Assume 'Mob' From Muslim Community Would Chant ‘Jai Shree Ram’: Court Raps Delhi Police For Clubbing Complaints Without Probe, Acquits 3
— Live Law (@LiveLawIndia) June 8, 2023
Read more: https://t.co/58nVcr09pv pic.twitter.com/9hyt0PKOnO
As Khalid completed close to three years (two years, eight months and 24 days) in Delhi’s Tihar jail, we re-examined the police allegations shown to be false or contradictory, some that were dropped, protected police witnesses who lied or improved their accounts with each statement, and the communally tainted rhetoric that, experts said, weakened the case against him.
Khalid had become a symbol of resistance for Muslims in an era of rising Hindu majoritarianism (here, here, here and here) under the ruling Bharatiya Janata Party (BJP). When Parliament passed the new citizenship law in December 2019, allowing migrants of all faiths from Afghanistan, Pakistan and Bangladesh, except Muslims, a path to Indian citizenship, there was fear (here and here) of persecution and deportation if Muslims could not prove their citizenship in a nationwide NRC.
Khalid opposed the CAA and NRC but was not the only one to do so. Critics from all walks of life joined the anti-CAA movement, led by Indian Muslims. Taken aback by its popularity, silencing what Khalid represented—an articulate, unafraid young Muslim who had captured the public imagination—appeared to become a political imperative for the government.
In contrast, as many observers noted, no cases were pursued against union minister Anurag Thakur and BJP leader Kapil Mishra for direct incitement to violence during the Delhi riots. In April 2023, the Supreme Court issued notices to the Delhi police about ignoring what they said, observing that Thakur’s “goli maro saalon ko (shoot the traitors)” remark was “certainly not said in terms of a medical prescription”.
A narrow reading of the judicial precedents set for granting bail in a UAPA case—what a judge should and should not consider at this stage to determine if a “prima facie” case exists under the Act—has allowed the district court and the Delhi High Court to take the prosecution’s allegations about Khalid at face value and deny bail.
Khalid moved the Supreme Court for bail in May 2023.
While noting the fabrications, contradictions and inconsistencies in the police case, the courts decided not to address them at the stage of bail because the “cumulative” effect of the witness statements and events allows for a “prima facie” case. Even this “cumulative effect” was based on conjectures, inferences and events with no apparent criminality.
Here is a breakdown of Delhi High Court Justices Rajnish Bhatnagar and Siddharth Mridul’s reasons for denying bail to Khalid on 18 October 2022:
“He was a member of the WhatsApp group of Muslim students of JNU”: being a member of a WhatsApp group is not a crime. The police have not produced any message by him in this group.
“He participated in various meetings at Jantar Mantar, Jangpura office, Shaheen Bagh, Seelampur, Jaffarabad and Indian Social Institute”: attending meetings is not a crime. Nothing specific about what he said or did in some of these meetings. In others, protected witnesses, who say he was meeting with conspirators or inciting violence, have been shown by the defence to lie and improve on their accounts. Some have given statements months and months after the alleged meetings.
“He referred to the visit of the president of the USA to India in the Amravati speech”: Khalid referred to then US president Donald Trump’s visit for 42 seconds in a 20-minute speech that has always been available online. He said nothing that could be construed as inciting violence. The version of the perfectly legal address was submitted in evidence by the defence, not the prosecution.
“The CDR analysis depicts that there has been a flurry of calls that happened post riots amongst the appellant and the other co-accused”: the defence pointed out that it is perfectly natural for people to call each other when a communal riot breaks out in a city. Furthermore, to show an unusually high number of calls, the police would first have to show the call volume of another day.
Three of those co-accused were granted bail in the UAPA case by the Delhi High Court in June 2021 by Justice Anup Jairam Bhambhani and Justice Mridul, who found no evidence for a prima facie case for a terrorist act or preparing for one made out against them.
A year later, Mridul denied bail to Khalid.
In a blog published after the Delhi High Court rejected bail for Khalid, constitutional law scholar Gautam Bhatia wrote that “even under the loosest standards of intellectual consistency, it is simply inexplicable how the same learned justice can—without further explanation—be a party to two bail judgments that not only arose out of the same set of facts but took polar opposite approaches on the issue”.
In the bail orders for the student activists in 2021, Justice Mridul found “no specific or particularised allegation, much less any material bear out the allegation” of inciting violence and committing terrorist acts.
Still, when it came to Khalid, bail was denied because of his membership in a WhatsApp, phrases like “inquilabi salam” (revolutionary salute) and “krantikari istiqbal” (revolutionary welcome) in his speech, a “flurry of calls” after the riots, and his name finding “recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots”.
Bhatia wrote the High Court order showed that “UAPA adjudication continues to be inconsistent and judge-centric, and that individual liberty is, essentially, subject to the outcome of a judicial lottery”.
10 Things Wrong With The Police Case
1. A Legal Speech
The bail hearings started and ended with arguments over Khalid's speech in the northeastern Maharashtra town of Amravati on 17 February 2020, a week before the communal riots erupted in the national capital.
The speech was made at a public function and has always been available online. Nothing in the address could be interpreted as making calls for instigating violence ahead of US President Donald Trump’s 24-25 February 2020 visit.
In August 2021, while making a case for bail, Khalid’s lawyer, senior advocate Trideep Pais, told additional sessions judge Amitabh Rawat that FIR 59 said Khalid was making inciting “speeches” all over the country, when in fact, there was only one speech in the chargesheet and that too was accessed by the Delhi police from the organisers of the event in Amravati on 6 July, four months after the FIR was registered.
When the place registered the FIR in March, Pais said they used a truncated copy of the speech used by Republic TV and News 18, which got it from a tweet posted by Amit Malviya, who heads the IT cell for the ruling BJP.
Pais said the TV channels did not have the full video of the speech, and when they finally got it from Amravati on 6 July 2020, the police did not place it as evidence. It was the defence that was putting the prosecution’s “best evidence” before the court.
“This is the best evidence they have against me, and I produced it,” said Pais. “The contents are not seditious. The contents are a political speech opposed to a law.”
A year later, in October 2022, the Delhi High Court order rejecting bail had a confusing paragraph about Khalid’s speech that referred to Maximilien Robespierre, the French Revolution and Jawaharlal Nehru, where Justices Mridul and Bhatnagar said the use of words “inquilab salam” (revolutionary salute) and “krantikari istiqbal” (revolutionary welcome) might affect people beyond the immediate audience and that revolutions were not always bloodless.
While granting bail to Khalid’s alleged co-conspirators one year earlier, Justices Mridul and Bhambani said 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”.
2. Lie About The 8 January Meeting
In a case of rioting in the Khajuri Khas neighbourhood, where Khalid received bail on 15 April 2021, the Delhi police alleged that he met co-conspirators Tahir Hussain and Khalid Saifi in a secret meeting in the office of the Popular Front of India (PFI) at Shaheen Bagh on 8 January 2020. They plotted a violent agitation when Donald Trump visited India, the police alleged.
In June 2020, the Quint reported that news of Trump’s visit was reported in the media for the first time on 14 January, which makes it impossible for them to have been plotting the alleged agitation on 8 January. Furthermore, the dates for his visit were only finalised on 11 February.
When the chargesheet for the Delhi riots conspiracy case was filed on 21 September, the connection between the 8 January meeting and Trump was not made. It was dropped in a supplementary chargesheet filed in the other case related to rioting at Khajuri Khas.
3. Lying Witness
Four statements of a police witness about the alleged conspiracy meeting at Shaheen Bagh in south Delhi between Khalid, Saifi, and Hussain, on 8 January 2020, in the two cases were five months apart with varying accounts.
After no mention of the meeting in the first statement, the witness in subsequent statements changed whether he went inside the building or not but did not mention anything said.
Granting bail to Khalid in the Khajuri Khas case, additional sessions judge Vinod Yadav said the two different versions of the witness “does not appeal to the senses” and “charge sheeting the applicant on the basis of such insignificant material is unwarranted”.
Granting bail to Saifi in November 2020, Yadav reprimanded the “total non-application of mine by the police, which goes to the extent of vindictiveness”.
While “noting the contradiction”, additional sessions judge Amitabh Rawat, who denied Khalid bail in March 2022, said it was clear from the attempt that three men did meet at the office.
For the Delhi High Court, the “variance was only to the limited extent of the witness stating that he was present inside or outside the office”.
Before he was incarcerated in September 2020, Khalid said he had never met Hussain or been to the PFI office.
Fabricated Quote
A passage in the chargesheet said, “A veteran of sedition, the investigation of this case, had established how far the accused Umar Khalid had travelled from 2016 when he was the harbinger of the call—Bharat tere tere tukde tukde honge, inshallah, inshallah—to the present criminal conspiracy to commit a terrorist act.”
In a September bail hearing, Pais said there was no proof Khalid had shouted that slogan.
Pais said there was no reference to it in the 2016 sedition case the Delhi police had filed against him. Nor was it in any other court document or chargesheet.
4. Fabrications About The WhatsApp Groups
The Delhi police claimed Khalid directed co-accused Sharjeel Imam to start a WhatsApp group called “Muslim students of JNU” on 5-6 December 2019.
The police did not show any communication between Khalid and Imam or any witness who corroborated the claim. There was no message from Khalid in the group that was produced.
In the WhatsApp group used to plan and coordinate anti-CAA protests, the DPSG (Delhi Protest Support Group), where messages ran into reams and reams of paper, Pais told the court that Khalid sent four messages from the time it was formed in December 2019 to when it was closed in March 2020.
Of the four messages that Khalid sent to the DPSG group, Pais has told the court that two were Google pin locations to protest sites, one was relaying a message from a police officer who was asking protesters to de-escalate (sent when he was not in New Delhi) and a message from him saying that the Jamia Coordination Committee (JCC) did not intend to de-escalate (proof that he did not control the group).
5. No Evidence Of Illegality
With regards to a meeting held in Jangpura on 8 December 2019, where the police allege a conspiracy to “execute the conspiracy of chakka jam”, Pais told the court in October 2021 that there was nothing “secret” about the meeting and asked whether a protest involving a chakka jam was automatically a criminal conspiracy.
Pais had argued that of the three police witnesses, whose statements were recorded six to eight months after the meeting, only one spoke of a chakka jam but did not say anything about Khalid’s role.
“This meeting has found itself in every news item and bandied about like some great conspiracy,” he said. “Please tell me the criminality on this page.”
6. Inconsistencies & Absurdities
The police alleged a second conspiracy meeting allegedly held in Seelampur on the intervening night of 23-24 January 2020, where Khalid allegedly directed that the anti-CAA protests should “ultimately escalate to riots” resulting in the “spilling of bloods of policemen and others”.
Khalid allegedly said local women should start stockpiling knives, acid, bottles, stones, chilli powder, and other dangerous articles for rioting.
The photographs of the “secret” meeting were put on Facebook. Investigators in the chargesheet used the same photos.
The statements of the six witnesses relied on by the police are at variance with each other. Some said different things in their statements to the police while deposing before a magistrate.
One witness was a tea seller before whom Khalid allegedly revealed his plans to instigate a riot and who stayed quiet about these plans until June, three months after the communal violence, Pais told the court in November 2021. It is also unclear how the police knew about the tea seller, where to find him, or how he knew the names of the anti-CAA protesters.
7. Improving Statements
For the allegation that Khalid and his father, S Q R Ilyas, were at a protest at Jantar Mantar on 10 February 2020, plotting to involve Bangladeshi women in the anti-CAA protests, the police witness gave his first statement on 15 September 2020, two days after Khalid was arrested and seven months after the date of the alleged incident.
The three statements between 13 September 2020 and 18 November 2020 went from not mentioning the Bangladeshi women to urging them to bringing them in huge numbers.
“You have to continue cooking up the case against me even after I’m arrested,” Pais told the court in November 2021.
8. Half-Truths
The prosecution claimed that six messages 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.
The prosecution did not say that Khalid never responded to a single message, and the co-accused introduced himself twice in the messages suggesting that Khalid did not know him.
9. Untruths
The prosecution’s arguments have followed two tracks: showing Khalid as a conspiracy mastermind and delegitimising the anti-CAA protests.
In January 2022, special public prosecutor Amit Prasad told the court that the anti-CAA protests were a “facade of a secularism”, and this could be decided from the location of the protest sites in the “poorest of poor” neighbourhoods in “Muslim-dominated areas”.
While speaking of Jafrabad, the site where Muslim women blocked the road demanding the withdrawal of the CAA, which is projected as the flashpoint and epicentre of the riot, Prasad said this is “where maximum violence happened”.
The FIR was registered in connection with a roadblock that started on the night of 22 February 2022 on 24 February 2022 but did not mention any act of violence.
The locations of more than 700 FIRs (given in the chargesheet) show far more cases registered in the four other police stations.
The Jafrabad protest site was active till 25 February.
The Delhi police waited for five months before asking the Delhi metro for surveillance footage from the Jafrabad metro station.
Other protest sites, including Shaheen Bagh, were open even longer. The one at Jamia Millia Islamia University was running till the pandemic.
10. Arguments To Mask The Lack Of Evidence
The fact that Khalid was not in Delhi during the riots, the absence of any footage calling for violence or participating in any criminal activity, and no evidence of terror funding or recovery of any kind of weapons or rioting equipment from him was a problem of the police.
In order to cover up the seeming lack of evidence, the prosecution has used the phrase “conspiracy of silence”, arguing the accused have “masked” the planning of the conspiracy. They said the “veteran of sedition” learnt to “wipe off all evidence” after a sedition case slapped on him by the Delhi police in 2016.
In other words, the lack of evidence was proof of guilt.
The police have relied on disclosure statements. These are confessions made by the accused to the police that have no evidentiary value in a trial, and depending on them is a sign of a weak case.
While there are many police protecting witnesses alleging conspiracy, their statements have been recorded months after the riots. Several statements are similarly worded, and some have identical passages, which suggests they have been fabricated.
In the final days of the bail arguments before the district court in March 2022, which had lasted eight months, the prosecution submitted a third supplementary chargesheet with allegations against Khalid.
Pais said this case was an exercise in “reverse engineering”.
“You registered it on 6 March 2020, and we are still finding material to support it in 2022,” he said.
Then & Now
Before additional sessions judge Amitabh Rawat rejected bail for Khalid in March 2022, he had denied bail for his alleged co-conspirators—mobile phone salesman Faizan Khan and student activists—Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, who were granted bail by the Delhi High Court, which found no prima facie case made out against them.
A week earlier, Rawat had granted bail to co-accused Ishrat Jahan, a lawyer and a former municipal councillor for the Congress Party. Still, as lawyer Abhinav Sekhri pointed out, the judge justified bail without engaging with the larger case of the prosecution.
But in June 2021, while granting bail to student activists Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, Justices Mridul Siddharth and Anup Jairam Bhambhani did engage with the larger case.
They said that even if one were to assume the state’s case to be true—inflammatory speeches, chakka jams, instigation of women protesters, and other actions crossed the line of peaceful protests—it would not amount to commission or a “terrorist act” or a “conspiracy” or an “act preparatory” to the commission of a terrorist act as understood under the UAPA.
But a year later, while rejecting Khalid’s bail in October 2022, the same judge, Justice Mridul, along with Justice Rajnish Bhatnagar, said that “if taken at face value, there appears to be a premeditated conspiracy for causing disruptive chakka jam and pre-planned protests at different planned sites in Delhi, which was engineered to escalate to confrontational chakka jam and incitement to violence and culminate in riots in the natural course on specific dates. The protest planned was not ‘a typical protest’ normal in political culture or democracy but one far more destructive and injurious geared towards extremely grave consequences”.
The court said that Rawat had recorded the inconsistencies and discrepancies in the statements of some protected witnesses. Still, a cumulative reading of all the statements and events pointed to a “prima facie case”—“a just decision”—and bail was not the stage to conduct “a mini-trial and return elaborate findings on the veracity of the testimony of each witness”.
By saying the court was “in full agreement with Ld Sessions judge” on the question of appreciation of evidence and “does not wish to burden this judgement”, Bhatia, the lawyer quoted previously, wrote that the court was “exempting itself from the burden of independent analysis as well”.
The Supreme Court has issued notice to the Delhi Police in Khalid’s plea for bail.
(Betwa Sharma is managing editor for Article 14.)
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