Delhi: In a Delhi riots case that became famous as the “Jafrabad roadblock case”, the prosecution told the court they would rely on 34 of the 100 videos the police submitted of the events in and around the Jafrabad metro station where many Muslim women protested against a controversial citizenship law and blocked the road starting on the night of 22 February 2020.
The videos the prosecution chose not to rely on included the one where a leader of the ruling Bharatiya Janata Party (BJP) made remarks that were widely regarded as incendiary a kilometre away at the Maujpur metro station, hours before communal riots broke out in northeast Delhi on 23 February 2020.
Earlier that day, Mishra tweeted asking people to gather at Maujpur "to answer Jaffrabad” and “hit the streets” to support the Citizenship Amendment Act (CAA) 2019.
While addressing a gathering at the Maujpur metro station, Mishra gave the police an ultimatum: If the roads are not cleared until US President Donald Trump leaves (he was visiting India on 24-25 February), he and his supporters will not listen to the police and will hit the roads.
In a tweet and video of him speaking, Mishra said, "Three days ultimatum for Delhi Police—clear the roads in Jaffrabad and Chand Bagh. After this, don't make us understand. We won't listen to you. Three days.”
Last month, five years after the riots, the BJP won the Delhi assembly election, defeating the Aam Aadmi Party (AAP).
Mishra, 44, a former AAP MLA, won back his old constituency, Karawal Nagar, becoming an MLA for the second time and the minister for law and justice, labour and employment, art and culture, language and tourism.
While the Delhi police never registered a criminal case against Mishra in connection with the tweets, remarks and rioting alleged by eyewitnesses in February 2020, 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”.
After five years, a trial court judge and a high court judge this month quashed Mishra’s efforts to stay the legal proceedings underway in that FIR under section 125 of the Representation of the People Act (RP), 1951—promoting enmity between classes in connection with 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.”
Arbitrary Application Of The Law
From a strictly legal lens, the video of Mishra’s remarks on the eve of the riots may not be relevant to the Jafrabad roadblock case (FIR 48/2020), which was about the hundreds who came to the metro station at Jafrabad from nearby neighbourhoods to oppose the CAA, without permission from the authorities.
However, the police have investigated and invoked criminal charges against poor Muslim women who joined the protests, but they have not registered a case against a BJP leader who told people to go to a volatile spot and made remarks that many believe triggered the violence, who eyewitnesses alleged to have seen in places where violence erupted and against whom they have submitted complaints alleging grave crimes.
The Supreme Court’s test for free speech is whether the words spoken intended to cause violence, and that bar would apply to Mishra, but the police would first have to launch a rigorous investigation to see whether he intended to foment violence.
After a high court judge strongly urged the police to register an FIR as early as 26 February 2020, they were forced to respond. Five months later, they did so, telling the court they found no evidence to register a case against him.
The police questioned him on 28 July 2020 concerning the so-called larger conspiracy case ( FIR 59/2020), which investigated who planned the riots. Neither an accused nor a witness in the case, Mishra was asked a few rudimentary questions about his movements and speech on 23 February 2020, and his responses have seemingly been taken at face value.
On the point that the police were seemingly satisfied with Mishra’s responses and appear to hold very different standards when it comes to the anti-CAA protesters arrested in FIR 59, Supreme Court advocate Shahrukh Alam said, “Why are you satisfied when it comes to Kapil Mishra. Your degrees of satisfaction are different depending on who you are investigating. This is a differentiated application of legal standards. This is apartheid.”
An investigation is more than mere questioning.
It would require an FIR that would allow the police to look at phone conversations, see who Mishra had spoken to and possibly influenced, question them, check what WhatsApp groups he had been part of, among other things—the same drill as applied to the arrested anti-CAA protesters.
Noting the Supreme Court ruling that the police must register an FIR when they receive information about a cognisable offence (serious crime where a police officer can arrest someone without a warrant and initiate an investigation without needing a court order) in Lalita Kumar vs State of Uttar Pradesh, senior advocate Indira Jaising said the police not registering one in Mishra’s case was “selective amnesty”.
“It is like giving amnesty to someone before you have even commenced an investigation,” said Jaising. “You can call it selective amnesty or impunity.”
Mishra has denied any responsibility for causing the riots, saying he was “proud” of what he said and would do it again. We contacted him over the phone and WhatsApp and will update the copy if he responds.
Double Standards
Suppose the police were to find no evidence that Mishra planned the riots and decided to file a closure report. What is the criminal liability for making incendiary remarks in a volatile situation?
If it had been an anti-CAA protester who had made these remarks, the police would have given no thought to free speech rights, and a staple of criminal provisions would have been invoked including promoting enmity between different groups, deliberate and malicious acts to outrage religious feelings, among others.
If the speaker were a long-standing government critic, the police would invoke provisions like sedition and terror charges under the Unlawful Activities Prevention Act 1967.
“This is a completely arbitrary thing,” said Alam. “Why does he (Mishra) get away with saying what can put other people, Muslims especially, in jail for five years? How can you treat speech entirely differently depending on who is saying it?
In the so-called larger conspiracy, for instance, political activist Umar Khalid is being prosecuted for crimes like conspiracy and committing a terrorist act because of a speech he gave a week before the riots in February 2020, thousands of kilometres away from Delhi, calling for a non-violent agitation against the CAA.
PhD scholar Sharjeel Imam made speeches that many found to be polarising and unpalatable, but they are arguably protected under the fundamental right to free speech. These, too, were made thousands of kilometres away from the city more than a month before the riots, and yet he has been jailed for more than five years because of them.
A Muslim man, Faizan Khan, who allegedly sold a mobile phone SIM card on false identification to a college student (a co-accused in the so-called larger conspiracy case), was also accused of committing a terrorist act and conspiracy.
A One-Sided Investigation
More than 50 people were killed in the riots. Three-quarters were Muslims. More Muslims were injured and lost property, and yet the Delhi police have said the riots were planned and executed by the anti-CAA protesters, who were predominantly Muslim and the roadblocks (chakka jam) they organised.
Of the 18 people chargesheeted, 16 are Muslim. The two Hindus were anti-CAA protesters.
We have reported how the so-called conspiracy case is filled with inferences, conjectures and fabrications to fit this predetermined narrative. It is based almost entirely on similarly worded witness statements taken months after the riots and a handful of WhatsApp messages that reveal nothing inculpatory and lack physical evidence.
The report of the Delhi Minorities Commission, a statutory body under the government of the national capital region, said that within hours of Mishra’s speech on 23 February 2020, violence broke out in various parts of northeast Delhi, with mobs fanning out with petrol bottles, petrol bombs, iron rods, gas cylinders, stones and firearms.
The police case has no evidence of the anti-CAA protesters collecting, paying for or moving weapons and rioters. The chakka jams may have contributed to the chaos, but the Delhi High Court said it was a legal way of protest and said the police had blurred the lines between terrorism and the right to protest. Furthermore, many anti-CAA protest sites, including the main one, Shaheen Bagh, remained peaceful during the three days of rioting.
But if the police case is that anti-CAA protesters mobilised the Muslim side, then who organised the Hindu side, which caused more deaths and inflicted more damage?
This is the missing piece of the puzzle, which the police cannot explain unless they carry out a fair and unbiased investigation.
If it was not Mishra, then who was it? The people of Delhi are owed an answer to this question.
Five Years On
More than five years after Mishra made his remarks at the Maujpur metro station, the applications and petitions demanding an FIR are in various stages of pendency before the courts, leaving behind a trail of weary litigants.
The police have been critical of those who have sought action against Mishra, accusing them of having a “hidden agenda” and trying to “frame” him.
One of them was Mohd Wasim, who was a minor on 24 February 2020, the day he was beaten up and humiliated by police personnel and forced to sing the national anthem near the Kardampuri bridge as communal riots were breaking out.
Wasim also alleged that he saw Mishra at the site of an anti-CAA protest at Kardampuri bridge, where a police officer handed him a loudspeaker, and he fired gunshots at the anti-CAA protesters.
In an order dated 18 January 2025, judicial magistrate Udbhav Kumar Jain said the investigating officer had “failed to make an inquiry against Mishra, or he tried to cover up the allegations” and told Wasim to move the courts established to try cases against former and current lawmakers.
In the order that came out a month before Mishra became the law minister, the magistrate wrote that accused number three (Mishra) “is in public eyes and is prone to more scrutiny; such persons in the society direct the course/mood of the public at large and thus, responsible behaviour within the ambit of the Constitution of India is expected from such persons.”
Five Years Ago
Justice S Muralidhar showed videos of remarks made by three BJP leaders to senior police officers and the country's second most senior law officer on 26 February 2020 and told them to make a "conscious decision" to register an FIR within 24 hours.
In addition to Mishra, there was a twice-elected member of parliament from west Delhi, the minister for information and broadcasting then, and a member of the legislative assembly from east Delhi.
“Why shouldn't there be an FIR against these four BJP leaders…including union minister, MP and MLA?” said Justice Muralidhar. “Why aren’t you registering [an FIR] for these speeches?”
Solicitor General Tushar Mehta told the court the timing was not “conducive” to registering an FIR because it could “aggravate” the situation and to “grant us time to take a call at an appropriate stage”.
That same day, the Delhi High Court judge received a late-night notification that the central government had approved his transfer recommended by the Supreme Court collegium on 12 February.
While the collegium had already recommended the transfer, and the judge later said he had no objection, the timing of the notification made it seem punitive.
Five months later, in July 2020, the Delhi Police submitted an affidavit to a division bench led by then chief justice of the Delhi High Court, D N Patel, claiming that no evidence has surfaced so far to indicate any role played by BJP leaders in the riots.
Instead, the police criticised the petitioners who had moved the high court seeking action against the BJP leaders, claiming they had “selectively chosen certain speeches and incidents to further their hidden agenda”. They blamed the anti-CAA protesters and protests for the riots.
At The Time
Fronted by hundreds of Muslim women from low-income neighbourhoods who sat at the Shaheen Bagh protest site in Delhi, the anti-CAA movement brought global attention to Islamophobia gripping India since the BJP came to power in 2014, and the fact that the movement grew and sustained for two months rattled Prime Minister Narendra Modi’s government.
The CAA offered a path to citizenship for undocumented migrants from India's Muslim-majority neighbours—Afghanistan, Bangladesh, Pakistan—except Muslims, effectively making religion the basis of granting Indian citizenship.
The law was passed following six years in which Hindu right-wing groups operating as cow vigilantes had lynched Muslims and terrorised minorities.
An exercise to root out undocumented immigrants, the National Register of Citizens (NRC), was underway in Assam, where the persecution of Bengali-speaking Muslims had worsened since the BJP came to power in the state in 2016.
Home Minister Amit Shah had called Bangladeshi migrants “termites” and was proposing a national rollout of an exercise to determine and identify undocumented people living in India. There was news of more detention camps being constructed in Assam and elsewhere in the country.
This meant that despite the Modi government saying that the CAA was for religious minorities fleeing persecution in Muslim countries and that Indian Muslims would not be affected by the law, there was a real fear among Muslims that the CAA read with the NRC posed an existential threat. They feared that Muslims who could not produce the necessary documents to prove their citizenship would end up in detention camps.
How To Communalise
Given that the anti-CAA movement was directed at the government to repeal the law and there was no cause for conflict between Hindus and Muslims, the BJP and its right-wing allies had to work hard to whip up public sentiment against it.
When it became imperative for them to polarise the public before the Delhi election in February 2020, right-wing activists played up the fact that the anti-CAA protesters were blocking key roads for the protest and inconveniencing daily commuters.
On 10 February 2020, in response to a petition by " lawyer-activist” Amit Sahni and veteran BJP leader Nand Kishore Garg, the Supreme Court said that people have the right to protest but not to block roads indefinitely.
While people using the Kalindi Kunj-Shaheen Bagh stretch and the Okhla underpass had concerns about the roads being blocked for months, BJP leaders Parvesh Verma, a twice-elected BJP MP from West Delhi, and Anurag Thakur, a five-time Lok Sabha member of Parliament from Himachal Pradesh, who served as the minister for information and broadcasting at time, began to whip up a communal frenzy against the protests.
While campaigning on 27 January 2020 for the Delhi election in February, Thakur said, “Goli maaro salon ko (shoot them)” at a rally and the crowd responded by saying, Desh ke gadaaron ko” (the traitors to the country).
The next day, Verma, a twice-elected BJP MP from West Delhi, said those gathered at the Shaheen Bagh protest site “would enter your houses, rape your sisters and daughters” and that if the BJP were elected, they would clear all mosques on government land within a month.
While the Aam Aadmi Party (AAP) won the election with 62 of 70 seats, BJP increased its tally from three seats in 2015 to eight in 2020.
Five years later, the BJP won the Delhi election with 48 seats.
Verma, who defeated the former chief minister Arvind Kejriwal from the New Delhi constituency by just over 4000 votes, is now the deputy chief minister of Delhi, handling key portfolios like the public works department, legislative affairs and water.
In 2022, Verma called for a “total boycott” of Muslims, saying that people should not buy vegetables for them or eat at their restaurants.
What Kapil Mishra Said
In February 2020, talks between the protesters and the Modi government were going nowhere, with home minister Amit Shah saying they would not budge an inch.
Frustrated protesters targeted US President Donald Trump’s visit to India on February 24 and 25 to escalate and draw attention to themselves by blocking roads.
This coincided with Chandra Shekhar Azad, the chief of the Bhim Army and a popular Dalit leader, calling for a Bharat Bandh on 23 February to protest the Supreme Court’s ruling that reservation in promotions was not a fundamental right.
Following the call, anti-CAA protesters gathered under the Jafrabad metro station on the night of 22 February and blocked the main road. The next day, people demanding that the road be reopened gathered a kilometre away at the Maujpur metro station. Sporadic stone pelting between the “pro” and “anti” CAA protesters was reported as tensions at the site rose and started to spread in northeast Delhi.
This was the volatile situation when Mishra went to the Maujpur metro station at around three thirty in the afternoon on 23 February.
Flanked by the deputy police commissioner of northeast Delhi, Ved Prakash Surya, who was in riot gear, Mishra said, “It is a simple thing, what these people want is that until Trump is in Delhi, they want Delhi to be on fire. That is why they have blocked the roads. That is why they have created a riot-like environment. Not a single rock has been thrown from our side. DCP sahab is standing in front of us. I’m saying this on behalf of all of you. Till Trump is here, we will go peacefully, but after that, we will not listen to you if the roads are not cleared.”
“We are pleading with you to get Jafrabad and Chandbagh cleared until Trump leaves. After that, we will have to go on the road,” he said.
The Questioning
When the police called him for questioning in the so-called conspiracy case seven months later, the examination included questions like what time and date he visited the northeast district, what was the purpose of his visit, did he visit any other protest sites in Delhi, what were his personal observations of the area” and they asked him what the last few lines in his remarks meant.
In response to what he meant by his remark, “Trump ke jaane tak toh hum shaanti se jaa rahen hain, lekin uske baad hum aapki bhi nahin sunege”
(Till Trump is here we will go peacefully, but after that, we will not
listen to you if the roads are not cleared), Mishra said, “..raaste na khulne ki surat mein hum bhi dharne par baith jayenge” (if the roads are not open then we too will sit in protest).
Mishra said that he went to Maujpur because people were saying that Muslim protesters had blocked the road for the past two months–sometimes the service lane and sometimes the main road, and this had disrupted their lives. There were problems going to work, school and ambulances to reach. He said that he spoke to the DCP before reaching there, and by the time he got there, people told him that the stone pelting had started, and he laid the entire blame for the stone pelting on the anti-CAA protesters.
“Muslims had created an atmosphere of fear and terror,” he said.
However, the FIR in the Jafrabad roadblock case registered was registered close to seven in the evening on 24 February, two days after the protest and roadblock began on the night of 22 February and does not mention any violence, only loud sloganeering against the CAA, police and government.
Furthermore, an administrative order prohibiting gathering four or more people was only implemented in the northeast district on 24 February, and the protest site was cleared on 25 February.
Mishra said that he had visited no other protest site.
However, in addition to the video of him at Jafrabad, there were at least three complaints of Mishra leading a mob at the Kardampuri bridge on 23 February and 24 February. None of them have converted to an FIR.
This month, in response to a complaint by Mohammed Ilyas, a Yamuna Vihar resident, the police said Mishra was being “framed” and that his role had been addressed in the so called larger conspiracy case.
From AAP To BJP
Three years and five months after he spoke at the Maujpur metro station, Mishra was appointed vice president of the BJP’s Delhi unit in August.
Five years after he made those remarks, Mishra won a Delhi assembly seat by more than 23,000 votes from Karawal Nagar, a riot-hit constituency in the northeast.
Mishra first won that seat as an AAP candidate in the 2015 assembly election, defeating the BJP candidate and a four-time MLA by more than 44,000 votes.
Mishra was the water resources minister in the AAP-led government in Delhi.
In a massive row with the AAP leadership that followed, Mishra accused the party’s leaders of corruption and they accused him of supporting the BJP. He was removed as a cabinet minister and disqualified as an MLA. He joined the BJP in August 2019.
Mishra became a face of BJP’s opposition to the anti-CAA protests in Delhi, raising violent slogans against the protesters at Jawaharlal Nehru University, Jamia Millia Islamia University and the Aligarh Muslim University.
Coming Back To Jafrabad
Of the over 700 cases the Delhi police registered in connection with the 2020 riots, the Jafrabad roadblock case was significant for three reasons.
First, the protest and roadblock were characterised as one of the key triggers for the riots, but the FIR—registered two days after the protest—does not mention any violence.
Second, it was the only case where Muslim women—most of them homemakers and seamstresses from low-income neighbourhoods—have been accused of grave crimes like criminal conspiracy and promotion of disharmony and enmity between different religious groups.
We have previously reported on the fantastical manner in which a police informer started identifying them more than eight months after the protest and how it seemed the purpose of this exercise was to collect statements against three anti-CAA protesters, Gulfisha Fatima, Devangana Kalita and Natasha Narwal.
Third, the police submitted the video with Mishra’s remarks as part of the chargesheet. While they have always been in the public domain and accessible to the police, the remarks have now become part of the court record. Even if the prosecution chose not to rely on them in this case, nothing was stopping the investigating officer from passing the videos to the investigating officer in cases where they would be relevant.
Did It Lead To Violence
Take, for instance, an FIR that was registered at the Welcome police station on 23 February for unlawful assembly and rioting with a deadly weapon less than two hours after Mishra’s speech at the Maujpur police station.
The FIR said there was agitation at the Maujpur-Babarpur metro station, and there was a lot of stone and bricks on the ground, but it does not say what happened or if Mishra’s speech was responsible for it.
As we have reported, the Supreme Court has given primacy to freedom of speech and expression, allowing slogans like “Khalistan zindabad” and “raj karega khalsa” and restricting only words that have “tendency or intention to create disorder or disturbance of public peace by resort to violence”.
The fact that violence erupted hours after Mishra’s remarks in the same area that he made them is worthy of a rigorous investigation.
(Betwa Sharma is the managing editor of Article 14).
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