New Delhi: Four years and three months after he was arrested in connection with the Delhi riots, Umar Khalid made his bail plea for a second time before the Delhi High Court on 6 December 2024, arguing on the grounds of the “time spent” jailed without trial as well as parity.
The parity that his lawyer, senior advocate Trideep Pais, spoke of was the bail the high court granted to Khalid’s co-accused in the Delhi riots conspiracy case in June 2021— Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha, student activists at the time of the protests—and the trial court gave to Ishrat Jahan, a lawyer and former Congress Party councillor, in March 2022.
The Delhi police say the so-called “larger conspiracy case”, one of 752 cases registered in connection with the Delhi riot, is about prosecuting those who planned the communal violence that consumed northeast Delhi from 23 February 2020 to 25 February 2020.
Of the 53 people killed in the riot, three-quarters were Muslim. Of the 18 people charged in the case, 16 are Muslim.
Close to five years after it was registered on 6 March 2020, the case is currently at the stage of arguments on charge, which could take time since the lawyers of 18 accused will make arguments.
The trial commences once arguments are framed.
Except for a week when he was allowed to leave jail to attend his sister’s wedding in December 2022, Khalid, 37, a PhD from Jawaharlal Nehru University, has been jailed since 13 September 2020.
‘Bail Is The Rule’
Khalid, a political activist, is a vocal critic of the ruling Bharatiya Janata Party (BJP) and Prime Minister Narendra Modi’s government, and co-founded the group United Against Hate to respond to escalating crimes against minorities and lynchings of Muslims.
“Today, I'm at four years and three months,” Pais told the division judge bench of Justices Naveen Chawla and Shalinder Kaur on Friday.
Khalid’s bail has been rejected thrice even though the Supreme Court has repeatedly said that bail is the rule and jail is the exception, and a division bench of Justices Abhay S Oka and Augustine George Masih reiterated that dictum in August 2024 in cases where there were grave allegations of terrorism and money laundering.
Our study of the chargesheet, witness statements, and the prosecution’s arguments suggests that the larger conspiracy case was mounted to discredit the protests against the Citizenship Amendment Act (CAA), 2019, which picked up in December 2019, and selectively punish some of the protesters for standing up to the government.
The CAA allows for non Muslims undocumented migrants from three of India’s Muslim majority neighbours—Afghanistan, Bangladesh and Pakistan—a path to Indian citizenship, effectively making religion the basis of granting citizenship.
Our reporting shows that the allegations against Khalid are based on inferences, conjectures, and fabrications.
The case against him is built on a speech he gave in Amravati, Maharashtra on 17 February 2020, WhatsApp messages sent on groups formed to plan the protests, and meetings between protesters. The speech is legal and not inciting by any stretch of the imagination. Khalid sent only four WhatsApp messages; nothing was criminal about them.
The police do not allege any overt acts by Khalid at most of these meetings, and when they do, they use demonstrably unreliable witness statements. The meetings are not connected with any specific act of violence or terrorist acts.
Others who protested against the CAA—Khalid Saifi, Meeran Haider and Gulfisha Fatima, Sharjeel Imam—have been jailed even longer than Khalid, with long delays and adjournments from Delhi High Court judges that leave before completing their bail hearings.
What Happened Before
A trial court has rejected Khalid’s bail twice; the lower courts avoid giving bail cases in which the anti-terror law, the Unlawful Activities Prevention Act (UAPA), 1967, is invoked.
Justices Siddharth Mridul and Rajesh Bhatnagar of the Delhi High Court rejected bail in October 2022 for reasons that our analysis found to be inarticulate and unclear.
In June 2021, while granting bail to student activists Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha in the same case, one of the same judges,
Justice Siddharth Mridul, along with Justice Anup Jairam Bhambhani, 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”, they said.
The justices 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.
In April 2023, Khalid appealed the Delhi High Court’s rejection of his bail in the Supreme Court where, despite its own exhortations of bail being the rule, the matter bounced between different judicial benches for nine months.
Khalid withdrew his petition in the Supreme Court in February this year and went back to the trial court.
Three years and seven months after he first argued for bail in August 2021 before additional sessions judge Amitabh Rawat, Khalid returned to the trial court to argue for bail in March 2024 before additional sessions judge Sameer Bajpai.
This time, Khalid argued on parity because four of his co-accused were already out on bail. He said those who received bail were alleged to be deeply involved in planning the anti-CAA protests, but they had obtained bail, while others who were far more active than him had not even been arrested.
The poor quality of the police case was reflected in the special public prosecutor Amit Prasad’s argument that Khalid sharing content with celebrities was proof of a conspiracy.
Prasad has previously argued that Khalid was not the “atheist” that he claims he was 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) and only spoke of Muslim lynchings in his Amravati speech.
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?”
Rawat rejected Khalid’s bail in March 2022 after eight months of arguments by Khalid and the prosecution. Bajpai rejected bail in May 2024.
Khalid filed for bail in Delhi High Court for a second time in July 2024; first, a judge of a division bench recused himself, and the bail hearings of Khalid and other accused were adjourned for four more months.
Pais argued for 40 minutes on 6 December.
When we asked whether it was common for people to return to the same court for bail, Shah Rukh Alam, a Supreme Court advocate, said, “Bails often go back to the same court on the plea that even more time has passed and trial has not begun, so please reconsider. "
What Changed: Parity & Precedent
When first arguing before the Delhi High Court in May 2022, Pais could not make the parity argument because the Delhi police had challenged the court's order granting bail to Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal.
The Supreme Court upheld the bail but said the order would not be precedent. That, however, changed when the court dismissed the Delhi police appeal in May 2023.
While examining WhatsApp messages and meetings, which police have alleged show a conspiracy to incite riots, Pais in past bail pleas has focused on demonstrating that there was nothing criminal about the messages and the accounts of meetings were based on unreliable witness statements, and none of the allegations refer to any terrorist act.
Pais argued on parity this time, pointing out that those out on bail sent more WhatsApp messages and were also present at these meetings and more involved than him. And there were others at these meetings who were neither arraigned nor arrested.
Pais said he joined senior advocate Rebecca John, who represents Khalid Saifi, who has been jailed for even longer than Khalid, in asking, “What is the basis of making this person or that person an accused does not know.”
Pais also said there “was a qualitative change in the manner in which chargesheets and statements were to be looked at interpreted” by the Supreme Court, citing the granting of bail to Vernon Gonsalves and Shoma Kanti Sen in the Bhima Koregaon–Elgar Parishad case, another case in which activists and academics have been slapped with terror charges.
While the accused in the Delhi riots have not yet benefited from them, significant developments in bail jurisprudence in UAPA cases have occurred in the past few years.
The Supreme Court has chipped away at the standard set in the National Investigation Agency v Zahoor Ahmad Shah Watali (2019) for granting bail in UAPA cases: judges should accept the state's version of events as prima facie true without delving into the case's merits.
In Union of India v K.A. Najeeb (2021), a three-judge bench said bail should be granted to cases of prolonged incarceration that violate the right to a speedy trial under Article 21 of the Constitution.
In Vernon Gonsalves v State of Maharashtra (2023), a two-judge bench said judges could do surface-level analysis, and the prima facie actual test under the UAPA would not apply if the evidence were of “low quality or low probative value”.
While granting bail to Vernon Gonsalves, a social and political activist jailed for almost five years, a division bench of Justices Aniruddha Bose and Sudhanshu Dhulia said none of the material gathered by the National Investigative Agency (NIA)—letters seized from the accused and witness statements—showed a prima facie terror case.
They said witness statements did not refer to any terrorist act alleged to have been committed by the appellants; an argument that Pais has also made with regards to Khalid.
While granting bail to Shoma Sen, a former Nagpur University professor jailed for six years, the Supreme Court in April 2024 said that none of the material gathered by the NIA—documents from third-party devices—showed a prima facie terror case.
“Both Vernon and Sen judgements have laid down on law on what constitutes a prima facie UAPA case and disregarded facetious evidence,” said Alam.
Making An Example
The citizenship law (CAA) made Indian Muslims feel very nervous when they read it alongside the National Register of Citizens (NRC)—a survey done in Assam where residents had to submit documents to prove their citizenship—when home minister Amit Shah said it would be rolled out everywhere.
Hundreds of thousands joined what came to be known as the anti-CAA movement, protests led mostly by Muslims, but the people who participated cut across religious, social, and economic backgrounds, and it became the first sustained protest against Islamophobia, the lynching of Muslims, and the attack on civil liberties since the BJP came to power in 2014.
Khalid attended some protests, participated in a few meetings, and gave some speeches, but there was nothing he publicly or what the police said he did that many others involved in the protests did not do.
Khalid was, however, a vocal critic of Prime Minister Modi’s government years before the protest and was emerging as a vocal and articulate Muslim leader fighting back against the persecution of Muslims.
Legal Speech
The first information report (FIR) 59, registered on 6 March 2020 mentioned the “speeches” that Khalid allegedly made to provoke people, but only one speech was cited in the 17,000-page chargesheet filed before the district court in September 2020.
The speech was given on 17 February 2020 in Amravati, Maharashtra; nothing is criminal about it.
The police only got Khalid’s full speech four months later in July.
Pais said the police had a clip of the speech they got from television channels, a “selective clip” shared by a BJP politician to “market some kind of outrage.”
“It’s a speech that does not call for violence. It is given thousands of miles from Delhi. There is absolutely no reaction. The video is also available,” said Pais. “There is no reaction from the crowd to that speech. It is a speech invoking Gandhi's principles of non-violence and saying that we should protest against this law.”
Discharged In Other Case
Less than a month after being arrested in the conspiracy case, Khalid was arrested in another case on 1 October 2020, FIR 101, which alleged a meeting on 8 January 2020 between Khalid and two of his co-accused, Tahir Hussain and Khalid Saifi to discuss the funding for engineering riots when the US president Donald Trump visited India on 24-25 February.
The Quint reported 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.
The same meeting on 8 January 2020 was alleged in the chargesheet for FIR 59, but this time the police quietly dropped the reference to Trump’s visit.
We have previously reported that the police witness for this meeting was unreliable and gave multiple statements with different versions of the meetings over five months.
Before he was arrested, Khalid said he never attended such a meeting.
Pais mentioned that Khalid was discharged in FIR 101/2020 on 3 December 2022, with the trial court judge giving a “scathing judgment” on the unreliability of the police witness and the timing of his statements.
“The sole FIR in which you tried to rope me in, I’m discharged,” Pais told the court.
No Illegality In WhatsApp Messages
Pais said Khalid was not present in Delhi during the riots, and he is not named in any other FIRs concerning the riots. No physical evidence was recovered from him or anyone else to show his complicity in the violence or terrorist act in any FIR. There was no allegation of procurement, receiving or raising funds.
On the WhatsApp groups to plan the anti-CAA movement, Pais said that Khalid was part of three but never messaged on two. On the third one, he dropped two locations of protest sites in response to queries.
On 24 February, the first day the violence escalated, and Khalid was in Munger, Bihar, he sent a message saying a senior Delhi police officer had urged him to request those who had called for a protest at police headquarters that day to reconsider their call given the developments and the fact that Trump was visiting.
Khalid then messaged and said that he had spoken to someone in the Jamia Coordination Committee (JCC), and it did not appear that the protest was being called off.
“I’ve told you the sum total of my involvement in the groups,” said Pais.
(Betwa Sharma is the managing editor of Article 14.)
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