New Delhi: Over 44 months have passed since Saima Khan’s father, businessman Mohammad Saleem Khan, was jailed in the February 2020 Delhi riots conspiracy case.

Saleem, 50, is among 20 people, including students and activists, accused of conspiring to plan and execute communal riots that swept northeast Delhi between 23 February and 25 February 2020, resulting in 53 deaths—two-thirds of them Muslim—and over 700 injuries.

The Delhi police charged the 20 in a common first information report (FIR number 59) under the Unlawful Activities Prevention Act, 1967 (UAPA), a “draconian” anti-terror law infamous for its widespread misuse against government critics and journalists, as Article 14 has reported (here, here and here).

Nine of those accused, 8 men and 1 woman—Saleem, Sharjeel Imam, Abdul Khali Saifi, Gulfisha Fatima, Meeran Haider, Salim Malik, Shifa Ur Rehman, Shadab Ahmed, and Athar Khan—remain in jail after being denied bail by lower courts, their petitions challenging the denial of bail also pending for 11 to 19 months in the Delhi high court.

Although a special bench consisting of Justice Siddharth Mridul and Justice Rajnish Bhatnagar listed the nine bail petitions for hearing between 34 and 60 times since April 2022 and even concluded hearings and reserved judgements in six between January and March 2023—petitions of Saifi, Fatima, Haider, Malik, Rehman, and Saleem—it failed to deliver a final judgement.

The nine cases came to a standstill when, on 5 July 2023, the Supreme Court collegium recommended Justice Mridul’s transfer to the Manipur high court as its chief justice—which the central government cleared three months later on 16 October—and a little more than a month later, Justice Bhatnagar’s transfer to the Rajasthan high court.

A new bench of Justice Suresh Kumar Kait and Justice Shalinder Kaur will now hear the nine cases afresh, further prolonging incarceration. On 1 November 2023, Justices Kait and Kaur fixed dates for rehearings in January and February 2024—with only Saleem’s case listed for 21 December 2023.

The trial has not yet begun. Lawyers and family members of the accused criticised the delays in deciding bail pleas. 

“It is a criminal waste of time that the matter will be heard all over again by another division bench after the new year,” former Madras high court judge K Chandru told Article 14. “Judges must have some regard for the fundamental right provided under Article 21 of the Constitution.”

Article 21 says no person shall be deprived of his life or personal liberty except according to procedure established by law. Courts across the country have held the right to a speedy trial as also a part of this fundamental right.

Saima said they had cooperated in the investigation. “The only thing we ask of the court is that justice is delivered in time,” she said. “How much longer can we hold on, that too, just for bail? The trial is yet to begin, which is another ordeal for us.”

Our study of the cases of the nine accused highlights how administrative difficulties in the high court, scarcity of time on the part of the judges, and ground-level implications of a larger power tussle between the central government and the Supreme Court collegium on transfers and appointments of judges have together resulted in prolonged incarceration.

The Delhi Riots Conspiracy Case

The Delhi police have accused 20 persons, including the nine whose cases are before the Delhi high court, of utilising protests against the Citizenship Amendment Act (CAA), 2019, spanning from December 2019 to February 2020, as a guise to orchestrate chakka jams (roadblocks), incite communal riots and thwart the nationwide implementation of the National Register of Citizens (NRC).

The chargesheets filed by the police invoke four sections of the UAPA, 25 sections of the Indian Penal Code (IPC), 1860, two sections of the Prevention of Damage of Public Property Act, 1984, and two sections of the Arms Act, 1959.

Several investigations by the Delhi police in cases connected with the Delhi riots have come under intense scrutiny of the lower courts. In September 2021, Article 14 reported how, in a series of cases, various Delhi courts granted bail to several accused, while also holding the police responsible for “vague evidence and general allegations,” a “shoddy probe”, and an “absolutely evasive” and “lackadaisical” attitude.

In the case of the nine accused before the Delhi high court, the lower courts rejected their bail under section 43D(5) of the UAPA which prescribes that a court may deny bail if it is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”. 

Repeated Listings But Mostly No Hearings

In the Delhi high court, the nine bail pleas were clubbed together by Justice Mridul’s bench as they arose from the same FIR.

As a result, all the petitions were almost always listed on the same dates for a hearing. However, listing of a case does not guarantee that a judge would hear the case that day. A case may not be taken up either because of lack of time, an adjournment request, or other reasons.

For instance, Haider, a PhD research scholar at Jamia Millia Islamia and a political activist, filed his bail plea in May 2022. Since then, his case has been listed 60 times. However, arguments took place only on four dates. 

Some proceedings—such as issuance of notice, calling for counter affidavits or other procedural work—happened on five other dates.

Of the 60 days his case was listed, there were a total of nine productive days.

Twenty times, the high court’s orders noted that the special bench “did not assemble”, seven times due to one judge on the bench being on leave or unavailable.

Advocate Arjun Dewan, counsel for one of the other accused, Athar, told Article 14 that the special bench may have found  it difficult to assemble,

Justice Mridul and Justice Bhatnagar were both heading separate benches and had to especially sit together to form this special bench. “... which could have been a hassle sometimes because each had their own roster and heavy workload,” Dewan said.

“A regular bench sits every day,” he continued, “while a special bench sits once a week usually. So a regular bench could have heard the cases more expeditiously. Hence you see so many times the court orders noting that the bench did not assemble.”

Another 22 times, the court’s orders simply note that the case was ordered to be “renotified” on another specific date.

“This means that the bench did assemble but was either hearing the case of another co-accused in that batch of nine cases or did not have time to hear any of the nine cases despite assembling,” Dewan told Article 14.

Haider’s plea was adjourned nine times—five on the petitioner’s asking and the rest on the state’s asking.

The other eight cases proceeded in an identical manner. The bench listed Saleem’s case 58 times, Rehman’s case 57 times, Fatima’s case 54 times, Saifi’s and Imam’s cases 46 times each, Ahmed’s case 41 times, Malik’s case 36 times, and Athar’s case 34 times.

Between January and March this year, the bench concluded hearing arguments from both sides and reserved its judgements in the bail pleas of Haider, Malik, Saleem, Rehman, Saifi and Fatima but did not deliver a  verdict.

In the case of the remaining three accused—Ahmed, Athar, and Imam—the court continued to list their cases. While the court heard arguments by Ahmed’s and Athar’s lawyers, arguments in Imam’s plea never made it to the argument stage despite being listed over 46 times.

“It is a scandal that a bail application should be adjourned anywhere between 34 to 60 times and even after concluding hearings not to deliver judgement,” Justice Chandru told Article 14.

Standstill After July 2023

On 2 May 2023, a case related to three other co-accused in the conspiracy case came up before the Supreme Court. The Delhi police had challenged a 15 June 2021 Delhi high court order granting bail to three of the 20 co-accused in the same conspiracy case—activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha.

The Supreme Court dismissed the police’s appeal and indicated that the other co-accused in the FIR could argue for bail on the grounds of parity.

This would enable the nine accused before the Delhi high court to ask the judges to look into whether their role in the case is largely similar to Kalita, Narwal and Tanha, and if so, grant bail on parity.

After the Supreme Court’s order, in May and July, three of the six whose bail orders were reserved by Justice Mridul’s bench—Haider, Fatima and Saifi—filed an application seeking bail on parity. This resulted in their cases being reopened. The bench would again have to hear both sides on the issue of parity and then deliver its judgements.

However, after 5 July 2023, the day when the Supreme Court collegium recommended Justice Mridul’s transfer to the Manipur high court, the bench did not hold extensive hearings in any of the pending cases, despite listing them.

“The bench could have been hesitant to go forward with the matter perhaps because the collegium had recommended Justice Mridul’s transfer in July, and a little while later, Justice Bhatnagar’s transfer in August,” Harsh Bora, Fatima’s advocate, told Article 14. 

“However, this is not what people expect from the courts, especially those like the accused who have already spent many years in custody.”

Justice Chandru, the former Madras high court judge, said whether a particular judge is under transfer or not should not impact the hearing of bail applications.

“If the senior judge [Justice Mridul] was recommended for transfer and if he still was hopeful of his transfer, he should have released the case to the chief justice to constitute some other bench,” he said.

“There should not be any relationship between his transfer move and his continued keeping of the cases under his list without orders. You cannot satisfy both sides,” said Chandru. “The constitutional oath taken by the judge must guide him to decide the matter without fear or favour and to the best of his abilities.”

No Verdicts In 3 Cases Waiting For Decisions

Despite Saleem, Malik, and Rehman choosing not to apply for bail on grounds of ‘parity’ (that three co-accused in the same conspiracy case, Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, had been granted bail by the high court and the bail order had been upheld by the Supreme Court), the bench failed to deliver a judgement even in their cases.

Gautam Khazanchi, Saleem’s lawyer, told Article 14 that everyone hoped the bench would at least pass its verdicts on those accused individuals’ bail pleas who did not file parity applications, which would have required fresh arguments to be heard.

“Since the matters were reserved by March, one did hope that at least those matters which were not re-opened could be decided at the earliest considering they were bail applications,” Khazanchi said.

However, Justice Mridul’s bench failed to do so.

Dewan, the lawyer for co-accused Athar, said the bench may have decided to wait until all nine bail pleas were heard and reserved for judgement. “However this does not usually happen in bail matters. In my experience, bail pleas are decided within 30-40 days max.”

Justice Chandru said that a bail application has to “stand on its own” and that the question of similar applications of bail by different persons “does not arise unless the matter relates to some legal issue”.

“Bail applications are heard on their own merits and there are cases where one gets bail and others in the same case are denied due to several circumstances,” he said.

The Supreme Court too has repeatedly emphasised that “delay in the pronouncement of judgement is opposed to the principle of law”, and prescribed a six-month limit on pronouncing a verdict in a reserved matter, failing which the case must go before a fresh bench for a rehearing.

It has, as recently as July 2022, advised high courts to “deliver the judgement at the earliest after the arguments are concluded”.

Effects Of Centre Vs. Collegium Power Tussle

The analysis of these nine cases also reveals the tangible repercussions of the ongoing power struggle between the central government and the Supreme Court collegium concerning the transfer and appointment of judges.

The collegium system has been criticised (here, here, here and here) for its opaque system of picking candidates for the higher judiciary and rationale for transferring judges.

In January 2023, Article 14 reported how a former Bharatiya Janata Party leader with a track record of delivering borderline hate speeches against India’s minorities was appointed as a judge at the Madras high court.

Under Prime Minister Narendra Modi, the union government has been more assertive in its stand against the nomination as judges of individuals  it sees as critical of it (here, here, here). It has held back nominations by delaying appointments.  

This is despite Supreme Court judgements (here and here) on the collegium system not envisaging the centre’s exercise of “pocket veto”, a situation where the centre sits over the collegium’s recommendation without sending it back for reconsideration.

The judgements require that if the collegium reiterates a recommendation after it was returned to them for reconsideration, the centre must go through with the appointment. However, Modi’s government has violated this rule too.

The Union government has been defiant of the collegium’s decisions to transfer judges (here and here).

On 6 January 2023, a Supreme Court bench of Justices Sanjay Kishan Kaul and Abhay S Oka told the centre that it could not sit on transfer recommendations of judges as it sends “a very wrong signal” of “third-party interference on behalf of the transferred judges”.

Despite these repeated assertions by the Supreme Court, the union government delayed Justice Mridul’s transfer, recommended on 5 July 2023, for over three months, clearing it on 16 October 2023.

The union government is yet to act on Justice Bhatnagar’s transfer which the collegium recommended on 10 August 2023.

Some lawyers said it was due to this state of limbo that the special bench in the conspiracy case did not hear arguments in the remaining cases after Justice Mridul’s transfer was recommended.

“Once both the judges in the special bench were recommended for transfer in July and August, there was uncertainty over when the transfers would actually go through,” Bora, Fatima’s counsel, told Article 14. “This might have swayed the bench to resist hearing the cases after July 2023.”

From the perspective of ordinary litigants, like these accused, delays and uncertainties in judicial appointments and transfers mean long periods of waiting to have meaningful hearings, said Bora.

The family members of the accused were hopeful that the new bench that will hear the nine cases afresh will deliver its verdict soon. 

“We are sure we will get justice. Everyone does,” said Saima, Saleem’s daughter. “But let it not come so late that a person’s life is already destroyed.”

(Saurav Das is a Delhi-based investigative journalist.)

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