Delhi: It is not surprising that the Delhi police have challenged additional sessions judge Arul Varma’s order of 4 February 2022, discharging 11 students and former students accused of violence at Jamia Millia Islamia University on 13 December 2019. 

The order weakens the Delhi riots conspiracy case where three discharged students are also accused, lawyers said.

The leaders of the movement against the contentious Citizenship Amendment Act (CAA), 2019, according to the police, hatched a conspiracy to force its repeal, “bringing the government of India to its knees” and defaming India when US President Donald Trump visited on 22-23 February 2020, which involved sowing unrest among Indian Muslims, and organising protests and “disruptive” chakka jams (roadblocks) that ended in rioting.  

The first stage of the alleged conspiracy was the protests at Jamia on 13 December and two days later on 15 December, culminating in violence after the CAA was signed into law on 12 December. 

Under the subhead, “First phase of chakka jams and riots”, in the chargesheet of the Delhi riots conspiracy case filed on 17 September 2020, the police said, “In pursuance and furtherance of common conspiracy hatched between the group of conspirators, the first phase of chakka jam and riots evolved as under”, with the Jamia violence case of 13 December 2019 listed first. 

Judge Varma not finding evidence for a trial against three of the alleged conspirators accused in both cases—student activists Safoora Zargar, Asif Iqbal Tanha and Sharjeel Imam—blunts the allegation of a multilayer conspiracy starting with the violence at Jamia and their role in it.

In telling the police to “desist from arraigning innocent protesters” and “to make a distinction between dissenters and rioters”, in the context of 13 December 2019, Varma’s order challenges the criminality the police have linked with the anti-CAA protests and the projection of the protesters as riot planners. 

"The truth is that we're living in a democracy. The constitution gives you the power to express yourselves freely,"   Varma said while discharging the students. "You had every right to dissent, to voice your opinions peacefully. And therefore, on the conceptus of the entire record, all of you are discharged."

On 3 February, a day before the order, Article 14 reported the poor investigation, inconsistencies and possible fabrication in the police case for 13 December 2019. The police failed to show evidence of planning or ascribe any overt act of violence to the students. 

The Delhi riots conspiracy case suffers from similar defects in the investigation. 

Fifty-three people were killed in the rioting from 23-26 February 2020 in northeast Delhi, two-thirds Muslim. Of the 18 people charge-sheeted in the Delhi riots conspiracy case, 16 are Muslim.

The police have alleged the conspiracy goes back to the abrogation of Article 370 in Jammu and Kashmir on 5 August 2019 and the Ayodhya verdict on 9 November 2019, which left Indian Muslims feeling angry and insecure, and the passage of the CAA on 12 December 2019 provided an opportunity to foment trouble starting with the protests in Jamia followed by the Shaheen Bagh sit-in building replica protest sites in Delhi and organising roadblocks to coincide with Trump’s visit. 

Varma’s order weakened the police allegation of the Jamia protests being part of the conspiracy that culminated in the Delhi riots and confirmed the lack of evidence to show the three alleged conspirators, Zargar, Tanha and Imam, were anything more than “innocent protesters” on that day. 

The CAA, a law that opens a path to Indian citizenship for only non-Muslim migrants from neighbouring Muslim-majority countries, made religion the basis of granting Indian citizenship. When Home Minister Amit Shah spoke of a national rolling out of the National Register of Citizens (NRC) to be completed before the 2024 national election, it frightened Indian Muslims who, if failing to produce the required documents to prove they were citizens, were, unlike other religious groups, not protected under the CAA. 

The anti-CAA movement, starting with the protests in Jamia on 13 December, lasted over two months, ending with the riots and the onset of the Covid-19 pandemic. 

When The Police Have A Weak Case

The chargesheet for the Delhi riots conspiracy said, “During the process of investigation, it came on record that when CAB was passed by the Council of Cabinet Ministers, Government of India, some group/individuals, who are against this bill (now Act) became active and started opposing this bill (now Act)... On 11/12/13 December 2019, Sharjeel Imam gave speeches in this regard. A protest has been started at Jamia Millia Islamia University from 13/12/2019 and thereafter two dharnas were started at the below mentioned places (Shaheen Bagh and Jamia). During the opposition of this CAA, riots started in the month of December 2019.”

On whether Varma’s order in the Jamia case impinges on the Delhi riots conspiracy case, Lubyathi Rangarajan, Article 14’s database editor, said, “Yes, it does.” 

“If there are interconnected offences, the moment you have a discharge in one, a smart defence counsel would certainly use it to get discharges in other FIRs. Then, the prosecution will try to separate them.  Any smart judge would see the weakness,”  said Rangarajan. 

Violence At Jamia 

The planned march from Jamia to the Parliament, attended by students and residents, turned violent as the police stopped them from proceeding, resulting in stone pelting, tear gas being fired, destruction of public property, and injuries on both sides. Two days later, on 15 December 2019, a second confrontation led to even worse violence and injuries, with the police infamously entering the Jamia university premises and beating up students inside the library. 

The next day, many Muslim women, outraged at the treatment of the mostly Muslim students of Jamia, staged a sit-in protest in the Shaheen Bagh neighbourhood, which was then replicated in many Muslim neighbourhoods in the city. 

While the Delhi police were admonished by the National Human Rights Commission and a metropolitan magistrate who dismissed the application to register an FIR against them, the blame for the violence at Jamia fell on the protesters in the police probes and popular imagination. Petitions challenging the alleged police brutality are still pending with the Delhi High Court. 

Order Challenged 

While a trial court does not set precedent, Judge Varma’s order has persuasive value in other courts. 

On 7 February, three days after Varma’s order, the Delhi police moved the Delhi High Court, asking for it to be set aside. With the solicitor general of India, Tushar Mehta, appearing for the state on 10 February, Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad listed the matter for an urgent hearing on 13 February. 

The police petition said the trial court not only discharged the respondents but “also swayed by emotional and sentimental feelings, it cast aspersions on the prosecuting agency and passed gravely prejudicial and adverse remarks against the prosecuting agency and the investigation.”

The police said the trial court held “mini-trial at the stage” and that “at the stage of the consideration of an application for discharge, the court has to proceed with the assumption that the materials brought on record by the prosecution are true and evaluate the said material and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all ingredients constituting the alleged offence. At this stage, the probative value of the materials has to be done, and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction.” 

On 13 February, appearing before Justice Swarna Kanta Sharma, additional solicitor general Sanjay Jain said, “I have serious issues with the court’s observations. Are these conclusions permissible? Was he hearing a PIL?” 

Giving notice to the accused to respond on 16 March, Justice Sharma said she would not expunge judge Varma’s remarks, but they wouldn’t affect the investigation or the trial in FIR 296.

While the prosecution has argued that the judge did not consider the third supplementary chargesheet filed on 1 February 2023, and that it was “treated as a toy” even though Varma wrote in his order that the supplementary chargesheet begins with a “patently wrong” and “highly deplorable” statement about moving an application “for conducting further investigation” because “no such permission was sought”. The chargesheet was placed after considerable arguments had been addressed and the accused had filed their written submissions and had “really nothing new to offer”.

“Even in this chargesheet, the witnesses merely aver that the accused were part of the protests, and some were ‘speaking loudly’ and ‘were arguing with the police’. No overt act has been attributed to them even in the present chargesheet,” the order said. “In the present case, it has been most unusual of the police to file one chargesheet and not one but three supplementary chargesheets, with really nothing new to offer.”

As charges were framed in the Jamia violence case over the past year, three years after the alleged offence,  judge Verma admonished the prosecution for delays and adjournments in the proceedings. 

“The point is also that the police have delayed this case for so long, but the moment the accused were discharged of these offences, the appeal was ready and filed,” said Rangarajan. 

No Prima Facie Case 

At the stage of opposing bail or framing charges, the police do not have to prove their case, but they have to show evidence for a prima facie one. 

Of the 12 accused in this case, the police produced a photograph from a Hindi-language newspaper published on 14 December 2019, which allegedly showed one accused, a motor mechanic in his twenties from Jamia Nagar, Mohd Ilyas, throwing a burnt tire on 13 December 2019. Ilyas was the only person arrested in the case, and on 4 February, judge Varma allowed for charges to be framed against him. 

As  Article 14 reported on 3 February, an examination of the chargesheets revealed no connection between Ilyas and the 11 students and former students arraigned in the matter, and the police did not appear to have any prima facie case of participating or planning the violence. Their case was built on disclosure statements of the students, which are not only inadmissible as evidence but only say they were present at the protest, not for the violence. There are no independent eyewitnesses. 

The statements of the police witnesses, the complaint against which the FIR was registered, the chargesheets and the oral arguments of the prosecution are at variance with each other on the question of whether there was a prohibitory order barring the gathering of five or more people in the Jamia area that day. Later the prosecution argued the prohibitory order was in place in the New Delhi district where the anti-CAA march was heading. 

In the discharge order of 4 February, Varma wrote, “Surely prosecutions cannot be launched based on conjectures and surmises, and chargesheets definitely cannot be filed based on probabilities,” noting the police “should have abstained from filing such an ill-conceived chargesheet qua persons whose role was confined only to being part of a protest.”

Varma told the police “to bring to book the actual perpetrators, with the adjuration not to blur lines between dissenters and rioters, and to desist from henceforth arraigning innocent protesters”. 

On 10 February, six days after passing the discharge order, and on the same day as the case was listed for an urgent hearing on 13 February, judge Varma recused himself from hearing a similar case on the second day of violence at Jamia on 15 December 2019, citing personal reasons. 

Defence counsel for one of the accused quoted him as saying, “While we were present at the hearing, the judge said I’m recusing myself from the matter. I told the judge that this was very saddening. The judge told us that you need to have faith in the law and judiciary and trust the system.” 

Weakening Of FIR 59  

The Delhi riots conspiracy case, which is FIR 59/2020 of the Delhi Crime Branch, stands on the legs of other cases that form layers of the conspiracy; FIR 296/2019 and FIR 298/2019 of the Jamia Nagar police station, related to the Jamia violence on the 13 December 2019 and 15 December 2019, FIR 242 2019 of the New Friends Colony police station (also related to the violence on 15 December) and FIR 48/2020 of the Jafrabad police station, related to the roadblock in Jafrabad ahead of the Delhi riots, among others. 

Varma’s order was important for chipping away at the conspiracy case, a defence lawyer said. “As per the police, the riot is a follow-up to all this. If I take away all the parts, can it still be said?”

With the discharge order in FIR 296/2019, one leg of the conspiracy case is hobbled, but the state can wriggle out of it if the Delhi High Court sets aside the trial court order or rules for the observations to not prejudice other proceedings.

Furthermore, the allegations in the Delhi riots conspiracy case are vague and omnibus, and as defence lawyers put it, the state can jump from saying, “you were there to ok, you were not there, but you planned it.”

As in the Jamia case, the police in the Delhi riots conspiracy failed to ascribe any overt acts of violence to the arraigned anti-CAA protesters on the days of the rioting. 

For instance, Umar Khalid, a PhD from JNU, was not in Delhi while the rioting was happening, but the police have alleged he was a “main conspirator” behind the plot akin to the “9/11” terror attack in the United States. 

To show that anti-CAA protesters were conspiring to incite violence under the garb of the movement, resulting in the riots, the police have relied on inadmissible statements of the accused students, police witness statements about conspiratorial meetings shown to be contradictory, and a tranche of WhatsApp messages that fail to show criminality.

The evidence so far fails to show why they should be accused of conspiracy as opposed to any other anti-CAA protester or members of the WhatsApp groups who were behind organising the protests. Instead, it accords criminality and communal motivations to the anti-CAA movement itself.

“In these large conspiracy cases, there are interconnected FIRs. The moment one leg falls, everything else is questionable. That is why the investigating agencies make it convoluted, to begin with. That is why FIR 59 is so convoluted,” said Rangarajan. “Convoluted allows you to rely on those connections when you want to but also say there are separate offences.” 

Judges Speak 

Judge Verma is not alone in his criticism of the Delhi police investigation. Delhi court judges have described their investigation into the Delhi riots as “absolutely evasive”, “lackadaisical”, “callous”, “casual”, “farcical”, and “painful to see”, a study of 40 court orders by Article 14 in 2021 revealed. 

While granting bail to four accused in FIR 59, Delhi High Court  judges have said that no prima facie case of terror under the Unlawful Activities Prevention Act, 1967 was made against them. 

In July 2020, Justice Rajiv Shakdher granted bail to Zargar, pregnant when she was arrested in the middle of the pandemic, on “humanitarian grounds”. In October 2020, Justice Suresh Kumar Kait said the case against mobile phone salesman Faizan Khan was built on “bald statements” and did not appear prima facie true. 

In June 2021, the Delhi High Court bench of Justice Siddharth Mridul and Anupam Jairam said no prima facie case was made against Tanha and student activists from JNU, Devangana Kalita and Natasha Narwal noting “the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting blurred. If this mindset gains traction, it would be a sad day for democracy.” 

More than a year later, in October 2022, Justice Mridul and Justice Rajnish Bhatnagar said a prima facie case against Khalid was made out because he was “in constant touch” with other co-accused, his “active involvement” in the protests, his being a member of the WhatsApp groups planning the demonstrations, and denied him bail.  

“The protest planned was not a typical agitation, normal in the political culture or democracy, but one far more destructive and injurious and geared towards extremely grave consequences,"the court said. "Thus, as per the pre-meditated plan, there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of the community residing in northeast Delhi, creating thereby panic and an alarming sense of insecurity.” 

Even though there was nothing inflammatory about the public speech Khalid made in Amravati, Maharashtra, on 17 February 2020, his only speech in the chargesheet, a key piece of evidence in the police case, judges called it “obnoxious, hateful, offensive and prima facie not acceptable” during oral arguments. 

Still, the judges later said the speech might amount to defamation, but it was not a terrorist activity. The court’s order, picking on two phrases "inquilabli salam" (revolutionary salute) and "krantikari istiqbal" (revolutionary welcome), suggests that anyone speaking of a revolution without using the term “bloodless” could be engaged in terrorist activity.

In FIR 101/2020, a case of rioting in the Khajuri Khas area, in which additional sessions judge Vinod Yadav granted bail to Khalid, the police were caught fibbing about the nature of an alleged conspiratorial meeting Khalid attended, and the police witnesses were shown to be given varying accounts of the meeting. 

The only person to be granted bail by a trial court in the Delhi riots conspiracy case was Ishrat Jahan, a lawyer and a former councillor of the Congress Party, in March 2022. Judge Rawat, however, didn’t engage with the prosecution’s larger case.

Dissenting A Duty 

Judge Varma defended the right to disobey by saying that “dissent is perhaps reflective of something which pricks a citizen’s conscience. 

He quoted Mahatma Gandhi saying, “Conscience is the source of dissent. When something is repugnant to our conscience, we refuse to obey it. This disobedience is constituted by duty. It becomes our duty to disobey anything repugnant to our conscience.” 

Judge Varma humanised the anti-CAA protesters by acknowledging the right of the Jamia students to protest and disobey if something was repugnant to their conscience. 

A defence lawyer said the right to go ahead and challenge laws repugnant to one’s conscience undercuts the state's argument that the anti-CAA protests were a problem. 

“The judge defends the right to disobey by quoting Gandhi," the lawyer said. "He is saying when anything is repugnant to your conscience, the right of disobedience is protected. He is defending the right of listening to your conscience over authority."

Quoting Chief Justice of India D Y Chandrachud on the importance of dissent indicates the lower court taking note of the signalling from the top. It suggests if the Supreme Court judges can take a stand for constitutional rights and civil liberties, lower court judges will feel secure in doing so. 

While delivering a lecture in Gujarat in February 2020, two and a half years before his elevation, Justice Chandrachud said, “The destruction of spaces for questioning and dissent destroys the basis of all growth—political, economic,  cultural and social. In this sense, dissent is a safety valve of democracy,” 

“The subtext is explicit, i.e. dissent has to be encouraged not stifled,” judge Verma said in his order. 

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(Betwa Sharma is managing editor of Article 14).