New Delhi: “As far as the Constitution is concerned, we have to use it fully. Constitutionality and the Constitution are two different things. Remember, Constitutionality means that we will not burn property. We will not hit people. But we can disrupt.”
“… except for self-defence, we do not have to attack anyone or raise weapons.”
“…whatever we do, we will do before the camera. We are not doing anything wrong, so we don’t have to be scared of the camera.”
“…how will we make 1000 Shaheen Baghs? When 100 courageous young men sit in front and say come and beat us, beat us however you like, but we will not move from here. We do not have to pick stones, we do have to pick up lathis, we do not have to shoot a bullet. All we have to do is sadak jam (block roads) and close all the highways.”
“…I’m not saying this road, whichever road you find appropriate, the road where there will be no fighting… what is the area that is safe and secure for us.”
These are some passages from Sharjeel Imam’s speeches that his lawyer Talib Mustafa read out while arguing for bail in the Delhi High Court on 12 December 2020, explaining that his client had called for chakka jams (blocking roads) to protest the Citizenship Amendment Act (CAA), 2019, but he had also called for there to be no violence.
This was the third time that Imam, 35, completed full arguments before the Delhi High Court, where his bail plea in the so-called “larger conspiracy case” of the Delhi riots has been pending for two years and nine months. This violates the Supreme Court’s repeated orders for all courts to dispose of bail matters quickly, preferably within two weeks of filing, because they have profound implications on the right to life and liberty (Article 21).
Imam was arrested on 25 August 2020 in the conspiracy case, which pinned blame for the communal violence in northeast Delhi in February 2020 on the students and activists who opposed the CAA. This controversial law made religion the basis of granting Indian citizenship.
After the district court denied bail—typical of lower courts in cases invoking sections like committing a terrorist act, raising funds for a terrorist act, and conspiracy to commit a terrorist act, under the Unlawful Activities Prevention Act (UAPA), 1967—Imam moved the high court on 28 April 2022.
The Supreme Court has repeatedly said that bail is the norm and jail is the exception. Last year, the apex court said this rule applied in cases that invoke special laws like the UAPA and the Prevention of Money Laundering Act, 2002.
Adjournment After Adjournment
In the nearly three years since Imam moved the Delhi High Court for bail, his lawyer, Ahmad Ibrahim, said there were many times that judges did not convene and adjourned the matter, judicial benches changed, judges were transferred, and they left without giving an order. The prosecution sought adjournment after adjournment.
“The bail application was filed in April 2022. Imagine, it is still pending adjudication,” said Ibrahim. “The delay is extraordinary.”
“There have been 70 hearings, and seven benches have changed. Three judges have recused themselves,” said Ibrahim. “Thrice, the matter has been heard completely. Judges have been transferred twice after a full hearing, and we had to argue from the start.”
“He has been jailed for five years. This is too much,” he said. “This is not something that should not happen to anyone.”
Ibrahim calculated the five years not from Imam’s arrest in the conspiracy case in August 2020 but from seven months earlier, when the Delhi police first arrested him on 28 January 2020 for the speech he made at the Aligarh Muslim University, Uttar Pradesh, on 16 January 2020 as the anti-CAA movement was growing.
The case was for sedition, promoting enmity between different groups, assertions prejudicial to national integration and statements creating or promoting enmity under the Indian Penal Code, 1860, now replaced by the Bharatiya Nyaya Sanhita, 2023, and unlawful activity under the UAPA.
Since then, seven more cases have been registered against Imam, a graduate of the Indian Institute of Technology, Bombay, a software engineer, and a PhD candidate at the Jawaharlal Nehru University, who hails from Jehanabad, a district in Bihar.
The cases in Delhi, Assam, Arunachal Pradesh, Manipur, and Uttar Pradesh in connection with the speeches he made and the violence in Jamia Millia Islamia University on 15 December 2020 invoked a slew of penal provisions punishable with six months to life imprisonment.
Except for the case registered in Manipur, where he was not arrested, Imam received bail (regular and statutory) in six cases and remains jailed in the conspiracy case.
Eighteen people have been chargesheeted in this case, which, in addition to the crimes of terrorism, invokes 25 sections of the IPC, including murder. Sixteen of the 18 are Muslim. Six have been granted bail.
Of the more than 50 people killed in the riots, three-quarters were Muslim.
Other accused in the conspiracy case, including Umar Khalid, Gulfisha Fatima, Khalid Saifi, and Meeran Haider, have also been jailed for close to four or five years without bail or trial.
In the Maharashtra-based Bhima Koregaon case, another case being prosecuted by Prime Minister Narendra Modi’s government that is widely regarded as politically motivated, Left-leaning activists and academics have been jailed for more than six years before getting bail.
With hundreds of witnesses and evidence reportedly running into tens of thousands of pages, the case is currently at the stage where the lawyers for the accused are arguing before a district court judge on framing charges. Those who feel the police have no evidence will argue for discharge. This could take months, and there is no clear time frame for the trial to begin.
“These guys have remained in jail for almost five years,” Talib Mustafa, Imam’s lawyer, told the Delhi High Court last month. “He is a student, my lord, with absolutely no run-ins with the law before this set of cases got registered against him during the opposition of the CAA.”
Poor Evidence
Because Imam was arrested as early as 28 January 2020, the Delhi police have very little evidence tying him to the alleged conspiracy to instigate riots in February 2020 when US President Donald Trump visited the national capital.
The police have not produced any witness statements about Imam planning any violence or any communication between him and his co-accused.
Furthermore, when news of Trump’s visit became public on 11 February, which, according to the prosecution, was a key inflection point in the anti-CAA movement and planning of the riots, Imam was already in jail.
This has meant that the prosecution has had to rely on four speeches that Imam made between December 2019 and January 2020 at Jamia Millia Islamia University in Delhi, Aligarh Muslim University in Uttar Pradesh, Asansol in West Bengal and Gaya in Bihar.
The most infamous of these speeches was the one he gave in Aligarh on 16 January 2020, in which he called for mainland India to be cut off from northeast India.
This line appears at the start of a trailer of a film on the Delhi riots that was tweeted on 25 January by Amit Malviya, in charge of the Bharatiya Janata Party’s (BJP) IT cell, who is credited as a producer of the film that portrays the anti-CAA protesters in a villainous light similar to the Delhi police case.
While opposing bail for the accused this month, the special public prosecutor Amit Prasad read out the passages from Imam’s speeches, including the part about cutting off India from the northeast.
Ibrahim said these speeches were read at every bail hearing because they “will prejudice any judge”.
“But my case is that I’m not ideologically aligned with the rest of them, and I want chakka jam because it is an effective means of protest,” said Ibrahim. “He can have his ideology because he is not calling for violence. On the contrary, there is evidence that he spoke against violence.”
While granting bail to Imam on 27 November 2021 in connection with the speech he gave in Aligarh, the Allahabad High Court said, “...it may be noted that on an undisputed basis, neither the applicant called anyone to bear arms nor any violence was incited as a result of the speech delivered by the applicant.”
Speaking to Article 14 from Tihar jail in June 2021, Imam said, “I was portrayed as a Muslim fanatic leading an illiterate mob. If someone goes through my speeches, they consist of subjects like non-violent modes of protests, minority rights, and elections in a democratic framework.”
Freedom Of Expression In India
While many have found Imam’s speeches harsh, aggressive, and polarising, Supreme Court precedents suggest they are protected under Article 19 (1) (a)—the freedom of speech and expression.
In Kedar Nath versus State of Bihar, which addressed whether sedition in the IPC violated the right to freedom of speech and expression, a five-judge bench of the Supreme Court on 20 January 1962 ruled that a valid restriction was only made out when the words spoken had the “tendency or intention to create disorder or disturbance of public peace by resort to violence”.
“…criticism of public measures or comment on government action, however, strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”
The court said that if the sedition were interpreted in any other manner to punish speech that spread disaffection or enmity without inciting a violent overthrow of the government, it would be unconstitutional.
On 1 March 1995, the Supreme Court in Balwant Singh and Anr vs State of Punjab said that raising slogans like “khalistan zindabad”, “raj karega khalsa”, and “Hinduan nun Punjab chon kadh ke chhadange hun mauka aya hai raj kayam karan da” (we will drive Hindus out of Punjab and establish our rule) in a crowded place in Chandigarh on the day that Prime Minister Indira Gandhi was assassinated did not amount to sedition.
“Some more overt act was required to bring home the charge to the two appellants, who are government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans - which arrest -and act the casual raising of one or two slogans - could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness some times is counter productive and can result is inviting trouble,” the court said.
This analysis of Supreme Court judgments by law students, Shrushti Taori and Tatva Damania, published in Live Law, showed that the court has linked “public order” to the security and defence of the state (Dr Ram Manohar Lohia vs State of Bihar 1965), not merely a law and order problem or a disturbance to public tranquillity (Shreya Singhal vs Union of India 2015), and the violence caused should have a direct nexus with speech or expression (S Rangarajan vs P Jagjivan Ram 1989)
‘What Was The Conspiracy?’
After hearing two days of public prosecutor Amit Prasad’s arguments opposing bail this month, Justice Navin Chawla and Justice Shalinder Kaur on 9 January said they could not understand the conspiracy and urged him to conclude.
Chawla said, “I’ll be very honest with you. I started making notes. We are losing you… Give us a bird eye view. What is that you have against them.”
Kaur said, “What was the conspiracy, according to you? How the conspirators acted. That is all.”
Reporting by various independent media outlets, including Article 14, has shown the so-called conspiracy case is riddled with conjectures, inferences and fabrications and vitiated by the singular objective of pinning the communal violence on the anti-CAA protests and those involved in them, saying they misrepresented the CAA to stoke fear in the Muslim community.
In June 2021, while granting bail to student activists Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, 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 the “making of inflammatory speeches, organising chakka jams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions.”
And even if one were to assume the state’s case to be accurate, the judges said 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 October 2022, however, the same judge, Mridul, in a bench with Rajesh Bhatnagar, rejected bail for Umar Khalid in the same FIR with the same set of facts and circumstances for reasons that our analysis found to be inarticulate and unclear.
The Delhi police registered 750 FIRs in connection with the Delhi riots.
Over the years, Delhi trial court judges and reporting by independent media outlets like Article 14 have found the police investigations to be poor and biased.
“Absolutely evasive”, “lackadaisical”, “callous”, “casual”, “farcical”, “painful to see”, and “misusing the judicial system” were some of the comments made by the judges.
Last year, Article 14 reported on how a Delhi police investigating officer framed nine Muslim men for an attack by a Hindu mob.
What Was Feared Then
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 of rapidly rising Islamophobia and lynching of Muslims by cow vigilantes since the BJP came to power in 2014. An exercise to root out undocumented immigrants, the National Register of Citizens (NRC), was underway in Assam, where Bengali-speaking Muslims have been openly vilified 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. And 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.
Fronted by hundreds of Muslim women who sat for two months at the main protest point of the anti-CAA movement, Shaheen Bagh, a Muslim neighbourhood in Delhi, the movement’s popularity spread beyond the national capital, and its ability to sustain itself surprised the Modi government.
Four years later and a few months before the general election, the Centre notified the rules to implement the CAA in March 2024, fast-tracking citizenship for non-Muslim migrants—Hindus, Sikhs, Buddhists, Jains, Parsis and Christians.
Multiple petitions challenging the Act and the rules as being discriminatory against Muslims have been pending before the Supreme Court.
Many Hindu migrants have become citizens under the CAA. Neither Amit Shah nor the government has said anything about a nationwide exercise to identify undocumented migrants.
The 16 lakh people left out of the final list of the NRC in Assam included seven lakh Muslims, five lakh Bengali-speaking Hindus, two lakh Assamese Hindus, and 1.5 lakh Gorkhas.
‘Too Much & Too Long’
On 25 January 2020, a 39-second clip of his hour-long speech at the Aligarh Muslim University on 16 January 2020—the part about blocking mainland India from the northeast—was widely circulated by some social media channels. That same day, five FIRs were registered against him in Assam, Arunachal Pradesh, Delhi, Manipur, and Uttar Pradesh.
The conspiracy case and two cases related to the violence in and around Jamia Millia Islamia University on 15 December 2019, when an anti-CAA protest turned violent, followed in the coming months.
Faced with a litany of cases getting registered in January, Imam phoned Ibrahim, who said they knew each other a little from their days at JNU.
Three days later, Ibrahim travelled to Imam’s hometown in Jehanabad, Bihar, where he lived with his widowed mother and younger brother and where he surrendered to the Delhi police.
“I think he called me because I was the only lawyer he knew,” said 32-year-old Ibrahim. “He told me that they were taking my speeches and using them in the wrong manner. I told him it would attract 153A (promoting enmity between different groups) but nothing more.”
“But then UAPA was invoked, and then FIR 59 came,” he said. “We could never imagine UAPA would be invoked.”
Over the next eight months, Imam was jailed in Arunachal, Assam, Uttar Pradesh and brought back to Delhi.
Imam has been legally represented by Ibrahim, Talib Mustafa, Tanveer Ahmed Mir, Nitya Ramakrishnan, and Ayesha Zaidi.
When we asked whether Imam had any “regrets” about the speeches he made, Ibrahim said that Imam and his lawyers were clear that they would defend the speeches because he never called for violence. The rest was protected under the freedom of speech and expression.
Ibrahim said Imam was at his lowest when he was locked up in Guwahati Central Jail as Covid-19 was ravaging the country, but he had learnt to cope over the years by reading five books a month and learning five languages—Assamese, Bengali, Persian, French, and German.
Behind the calm, however, was a deep worry for his ageing mother, whom he must provide for, and a keen desire to finish his PhD.
At the four-year mark, Ibrahim said that Imam told him, “In four years, I could have done a professional course, but I’ve learnt to live in prison. It is the most difficult thing that can happen to someone. But now you can get me out. I don’t want to be here any longer.”
“This has not broken his spirit, but he is very restless now. Rightly so,” said Ibrahim. “This bail application has just been hanging. No substantial proceeding is taking place. It has been too much and too long.”
(Betwa Sharma is managing editor of Article 14.)
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