Delhi: Last week, additional chief judicial magistrate, Vaibhav Chaurasia, from the Rouse Avenue Courts in India's capital city, ordered the police to register a first information report (FIR) against Kapil Mishra of the ruling Bharatiya Janata Party (BJP) and the law and justice minister of Delhi.
This was the first time a judge ordered such action against Mishra in connection with the communal riots that resulted in the deaths of 53, the majority Muslim, in February 2020 in northeast Delhi.
The judiciary has taken five years to respond to Mohammad Ilyas’s plea to investigate Mishra’s alleged involvement in the riots, even though provocative remarks made by Mishra just hours before the riots were captured on video, were widely circulated and have consistently been available for the public to see.
Some eyewitnesses have submitted complaints describing grave offenses, the kind that, when alleged, require the police to register an FIR.
Ilyas alleged that he saw Mishra blocking a road and breaking carts belonging to Muslims and Dalits in Kardampuri. The police did nothing to stop him, and the deputy commissioner for northeast Delhi, Ved Prakash Surya, threatened those protesting against the Citizenship Amendment Act (CAA), 2019.
Surya was the official standing next to Mishra when he made the remarks that many believed triggered the riots.
The plea of complainants and concerned citizens over the past five years has been straightforward: Considering the serious allegations, police should investigate Mishra and do it with the same rigour as they have done with the anti-CAA protesters, including Muslim women from low-income neighborhoods whom they blame for the riots.
There is far less evidence against the anti-CAA protesters. Still, the police have gone to great lengths to build a case that aligns with their pre-determined narrative of blaming the riots on the protesters, mostly Muslims, leading a popular movement against the citizenship law.
The police have ignored the role of the Hindu right, including that of BJP leaders like Mishra, who gave incendiary speeches before the riots, and they have failed to explain how far more Muslims (three-quarters of the 53 dead) were killed and suffered worse looting and damage to property.
Arbitrary Application Of The Law
We have reported how the so-called larger conspiracy case of the Delhi riots is built on conjectures and inferences. Yet, some activists, such as Gulfisha Fatima, Umar Khalid, Khalid Saifi and Sharjeel Imam, have been jailed for more than four years without bail.
Fatima, now 32 years old, was arrested on 9 April 2020 in FIR 48, which came to be called the Jafrabad roadblock case, and charged Muslim women—homemakers and seamstresses—who blocked the road at the Jafrabad metro station of rioting.
The women are from low-income neighborhoods around the metro station.
We reported how they were identified eight months to a year after the roadblock in a manner that would best be described as fantastical—a police informer would run into one or two of them every few weeks while walking around a place called Peeli Mithi ground. There was no explanation of how the informer recognised the burqa-clad women from the night of 23 February 2020.
We determined they were booked solely to collect statements against Fatima and two of her co-accused, Devangana Kalita and Natasha Narwal.
On 11 April, Fatima was arrested in FIR 59—the so-called larger conspiracy case which, as the police would become more and more determined about pinning the riots on the anti-CAA protesters, would come to include a sweeping range of criminal provisions including murder, sedition and committing acts of terrorism.
While granting bail to three of Fatima’s co-accused in June 2021, including Narwal and Kalita—the only two Hindus of the 16 chargesheeted in FIR 59—a division bench of the Delhi High Court led by Justice Siddharth Mridul said no prima facie case of a terrorist act was made out. The police had blurred the lines between the right to protest and terrorism.
After that one time when he demolished the police case, Justice Mridul never did the same for their co-accused, including Fatima, even as their bail applications lay before him for months.
While the Supreme Court has repeatedly said that bail is the norm and jail the exception, even in cases that invoke India’s counterterrorism and money laundering laws, Fatima’s bail application has been before the Delhi High Court since 2023 and has been argued at least twice.
Mishra, who was with the Aam Aadmi Party before quitting and joining the BJP in 2019, was never investigated. Five years after the riots, he won the riot-hit Karawal Nagar seat in northeast Delhi in the 2025 assembly election and was made the minister of law and justice in the new BJP government.
Last month, we reported how the police had extended themselves to build a case against the anti-CAA protesters while resisting any rigorous examination of Mishra, even though Justice S Muralidhar, a judge at the Delhi High Court then, strongly urged them to do so as early as 26 February 2020.
This kind of arbitrary application of the law by the police was the hallmark of an “apartheid” state, said Supreme Court advocate Shahrukh Alam.
Senior advocate Indira Jaising called it “selective amnesty or impunity” by the police.
A Few Good Judges
Considering how difficult it can be to achieve justice in cases that are more about politics than the law and when the ruling party desires a specific outcome, it is rare to encounter judges who adhere strictly to the law.
In a functioning democracy, judges fulfilling their responsibilities should not be the stuff of headlines. But in a country where power flattens the rule of law, a judge issuing an unfavorable ruling against a sitting minister is typically significant news.
When Justice Muralidhar strongly urged the Delhi police to register an FIR against Mishra and two other BJP leaders in connection with the Delhi riots five years ago, the judge received his transfer notice from the government that day.
Additional sessions judge Vinod Yadav, who spoke of the police’s “callous and farcical” probe into the Delhi riots, lambasting them in case after case, was transferred.
Justice Atul Sreedharan, who quashed many baseless
preventive detention orders and repeatedly censured the authorities was transferred to the Madhya Pradesh High Court 26 days before he was set to become the chief justice of the Jammu and Kashmir High Court.
While ordering the FIR against Mishra, the additional chief judicial magistrate, Vaibhav Chaurasia, said that Mishra was in the area in question, the offence alleged was a cognisable one—warranting an FIR, and the responses he gave in a police interrogation were communal.
The judge said that Mishra did not speak in terms of anti and pro-CAA protesters but rather Hindu and Muslim—“mere samne uss samay kareeb 50-60 log the. Dusri taraf Muslim ki karib 500-700 log ki bheed thi.” (There were 50-60 people with me. On that side, there was a crowd of 500-700 Muslims.)
The accused, the judge said, “has not framed his statement under pro CAA or anti CAA but rather dusri taraf Muslim with the distinction of us and them, wherein them is dusri taraf Muslim. This clearly establishes sides and required investigation to unearth the truth.”
In July 2020, when the clamour of action against Mishra would not die out, the police asked Mishra a few questions about his visit and remarks he made before the riots, the BJP leader had referred to the anti-CAA protesters as Muslims, saying, “Muslims had created an atmosphere of fear and terror.”
Following this questioning, the police found no cause to investigate further. Instead, they have accused those demanding an investigation of having a “hidden agenda” and trying to “frame” Mishra.
While the Delhi police never registered a criminal case against Mishra in connection with the riots, an FIR was registered for tweets he posted in January 2020 while campaigning for the BJP in the 2020 assembly election.
Mishra called Shaheen Bagh, the most famous anti-CAA protest site in Delhi at the time, “mini Pakistan” and said that the Delhi election would be contested between “India and Pakistan”.
Last month, a trial court judge and a high court quashed Mishra’s efforts to stay the legal proceedings underway in that FIR under section 125 of the Representation of the People Act, 1951—promoting enmity between classes in connection with the election.
Judge Jitendra Singh said, “The word 'Pakistan' is very skillfully weaved by the revisionist in his alleged statements to spew hatred, careless to communal polarisation that may ensue in the election campaign, only to garner votes.”
Pinch Of Salt—‘Too Little, Too Late’
The order regarding the FIR against Mishra concerning the Delhi riots should be approached with cautious expectations.
Earlier this year, a judicial magistrate of the Karkardooma district court, Udbhav Kumar Jain, ordered an FIR against the station house officer (SHO) of a police station in northeast Delhi for allegedly beating up a young Muslim during the communal riots and later terrorising him to keep quiet.
The judicial magistrate also said the police had failed to investigate or covered up the allegations against Mishra. He urged the complainant to pursue a case against him by moving the courts designated to prosecute sitting and former lawmakers.
The complainant was Mohd Wasim, who was still a minor when he was assaulted by policemen in Kardampuri on 23 February 2020, along with four other Muslims, and was forced into singing the national anthem while communal riots erupted in the city.
Two weeks after the magistrate’s order for an FIR, a district court judge stayed the order. The SHO claimed the allegations were part of another ongoing criminal case. Future hearings will determine if there is any legal basis for this.
The case mentioned by the SHO is a murder case that was registered following the death of Faizan, a 23-year-old Muslim, who succumbed to his injuries two days after the infamous incident involving the national anthem.
After the police took minimal action, his mother sought justice from the Delhi High Court. More than five years later, no arrests have been made, even though the incident was filmed and went viral.
When Wasim’s father learned that the hard-fought order for the FIR five years after the incident had been stayed, he merely shrugged it off, saying that he expected justice in 40 years.
Ilyas, too, said he was happy about the order, but he expected the police to get a stay order from a higher court and not register the FIR.
Mehmood Pracha, Wasim and Ilyas's lawyer, said that the police would most likely get a stay from the Delhi High Court on the magistrate’s order for an FIR against Mishra.
If they did, Pracha would move the Supreme Court.
“I'm not very excited. It is too little, too late,” said Pracha.
Imperfect Justice
Across the nation, judges continue to dismiss cases or at least grant bail to Muslims who have been arrested in cases falsely filed by a police force affected by widespread Islamophobia and anti-Muslim feelings.
A study by Common Cause, Lokniti, the Centre for the Study of Developing Societies and the Lal Family Foundation found that Hindu police personnel are most likely to believe that Muslims are “naturally inclined towards committing crimes” with the worst bias in Delhi, Rajasthan, Maharashtra and Gujarat.
The police are censured, but judges rarely order action against errant or prejudiced officers.
Kashif Kakvi reported one such rarity from Madhya Pradesh, where a high court judge, Justice Vivek Agarwal, specifically called out the district magistrate of Burhanpur for exiling a tribal rights activist without cause and fined him Rs 50,000.
In 2021, additional sessions judge Vinod Yadav fined the SHO of the Bhajanpura police station Rs 25,000 for a “callous and farcical” investigation into a Delhi riots case.
In 2024, we reported how an investigating officer framed nine Muslims in a Delhi riots case. Additional sessions judge Pulastya Pramchala dismissed the case, but the officer was not punished.
Last year, Kakvi reported that more than six years after 17 Muslim men were accused of celebrating Pakistan’s victory in a cricket match in June 2017, a first-class magistrate in Madhya Pradesh, Devander Sharma, dismissed the case but did not hold the police accountable for registering and prosecuting a false case.
In contrast to prominent political cases, such as the effort to attribute the Delhi riots to anti-CAA demonstrators, judges may find it simpler to conduct their work in straightforward criminal cases.
The discharges, acquittals, and bail orders that follow months or even years later don’t get a fraction of the attention as the initial fury whipped up by right-wing organisations and pro-government news networks around the initial false case.
At a time when a judge gives a Muslim man a life sentence in a poorly prosecuted case of “love jihad” and a judge attends an event hosted by a rightwing group and uses the work “kathmulla” ‘to describe Muslims, basic justice makes the news.
(Betwa Sharma is the managing editor of Article 14).
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