Redefining Justice: Legal Luminaries Highlight Judicial Challenges In Case Against Jailed Anti-CAA Activists

“Sabko sab pata hai. Everybody knows why they are in jail…because this government fears them. They are in jail because they are our future leaders. They are young voices. Padhe likhe hain. And yes, they’re Muslims,” said actor Prakash Raj with a sardonic smile. Raj was addressing a large gathering at Jawahar Bhawan, New Delhi on September 24, at a public meeting organised by the Association for Protection of Civil Rights, titled, “Longing For Justice”. The event was organised to highlight the inordinate delay in trial and the rejection of bail pleas of those activists, who have now been in prison for more than five years, by various courts.

The activists—who had been at the helm of the protests against the Citizenship Amendment Act in 2019-2020—were later booked by the Delhi police under FIR 59/2020, for allegedly being part of a conspiracy that led to the communal violence in Northeast Delhi in February 2020. More than 50 people were killed in the violence and a majority of these persons were Muslims. Invoking sections of the Unlawful Activities (Prevention) Act in the FIR, the Delhi police made 18 significant arrests in the case in 2020. Of these 18, Umar Khalid, Khalid Saifi, Sharjeel Imam, Gulfisha Fatima, Shifa Ur Rahman, Meeran Haider, Athar Khan, Shadab Ahmad and four others continue to remain behind bars even after more than five years, with the trial nowhere in sight. On September 2, the bail petitions of several of these activists was rejected by the Delhi High Court. Five of them have now moved the Supreme Court against the rejection of their bail pleas. The apex court has issued notice in the pleas and the next date of hearing is October 27.

The public meeting was addressed by several luminaries from the judiciary, including Adv Colin Gonsalves, Adv Prashant Bhushan, Adv Sanjay Hegde, Adv Nitya Ramakrishnan, Adv Shahrukh Alam, Adv Warisha Farasat along with retired Judge Iqbal Ahmed Ansari. Former IAS officer Kannan Gopinathan and Raj were also invited as speakers.

Questioning the basis of the case against these activists, Ramakrishnan said, “Even before UAPA, the mentality of the State has been that there can be criminal consequences to mere speech as well. The problem begins there.” She further stated that the State has a 'carceral obsession' with criminalising the expression of any opinion against the government through UAPA and other such laws. While talking about a case that was filed in the Supreme Court against the anti-CAA protests at Shaheen Bagh, Ramakrishnan said, “A highly problematic statement was given by Justice Sanjay Kishan Kaul in the judgement that ‘In free India, there is no place for protest’. I would only invite all of them to see Gandhiji’s evidence before the Hunter Commission, where he was specifically asked whether satyagraha would still be relevant if his country gained independence. And his answer was, ‘Yes, because the people’s weapon against injustice is protest.’”

Gonsalves spoke about the irony of jailing the activists protesting against CAA, when there was “crystal clear evidence” about who started the Delhi riots—a matter which is going on before the Delhi High Court. He said, “We have the video of a (former) cabinet minister Anurag Thakur, who started the Delhi riots. He stood up on a public platform and shouted the famous slogan, ‘Desh ke gaddaron ko, goli maaro saalon ko’. He exhorted people in the crowd to repeat the slogan after him.” He added, “Then you have the law minister of Delhi, Kapil Mishra, involved in instigating people to start the Delhi riots. Parvesh Verma, (former) Member of Parliament and many other dignitaries of the BJP and the RSS, were shouting slogans, walking through Delhi and starting the riots. Where is the question of looking for proof as to who started the Delhi riots? Everybody knows it.” Gonsalves further alleged that the judiciary was not willing to find out who started the Delhi riots because it has no courage, as even the fine judges are intimidated by the Prime Minister and his team.

Farasat reminded the gathering of the bail judgement of Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, who are also co-accused in the case. “The very same Delhi High Court had—on the exact same material before the judges now—categorically said that this is not a fit case for the invocation of the UAPA and we should stay away from criminalising dissent. That’s an order worth remembering because a Division bench of the High court had examined the material in the chargesheet and had come to this view,” she stated.

While moderating the panel of lawyers, Alam explained how the chargesheet in the case has framed the individuals who have been accused. “The chargesheet summary indicates that these individuals are ideologically predisposed towards violence. The State provides nothing to substantiate that charge and the fact that they’re Muslims is played over and over again. That is the political narrative at play in this case.”

Bhushan questioned the judicial delay in this case and responded to the statements being made by former Chief Justice of India DY Chandrachud in the press about Umar Khalid’s lawyers withdrawing their bail petition from the Supreme Court. He said, “Everyone knows that there are some judges who speak only in the favour of the government. People know which judge is corrupt, who is executing what the government wants and who is operating independently.”

He went on to explain how Khalid’s case was initially listed before senior judges like Justice AS Bopanna and Justice Aniruddha Bose, but the former CJI then assigned the case to Justice Bela Trivedi, who had previously been the law secretary of the Modi government in Gujarat before being a judge. “Everyone knew that Justice Trivedi will not take any decision that is not in favour of the government. This is why there were two-three adjournments taken by Khalid’s lawyers, in the hope that the roster would perhaps change and the case would be heard by a different judge. But when that didn’t happen, they had to withdraw, otherwise the bail petition would have been dismissed.” He further added that a petition on the Master of Roster had been filed by him, as the concentration of power in the hands of a single individual to decide which bench will hear which case was extremely dangerous.

Taking off from what Bhushan said, retired Chief Justice of Patna High Court, Iqbal Ansari, stated that the judgement in any case cannot depend on the mood of the judge. There have to be standardised principles based on which judges make decisions in cases. In a case such as FIR 59/2020, the principle followed should be that until someone’s incitement was actually and directly leading to physical violence, they cannot be accused to instigating riots. He also said that the essence of a democracy lay in the idea of agreeing to disagree.

Highlighting the prevalent fear among people today about dissent, Hegde said that people are scared to speak up, for the fear that someone might hear them and penalise them. “The violence happened in Delhi. But Khalid gave his speech in Amaravati. Sharjeel Imam spoke somewhere else, but the violence took place elsewhere. In the Bhima Koregaon case, the activists spoke at the Elgar Parishad in Pune, but they were accused of instigating violence in Bhima Koregaon, several kilometres away.” He pointed out that investigating agencies submit chargesheets running in thousands of pages, where they make multiple accusations against certain identified individuals. There is no proof or causality established in these chargesheets; the only demand placed before the courts is that bail must not be given to the accused. “The need of the hour is not just able lawyers who can defend the Constitution, but also courageous judges, who have healthy scepticism.”

Gopinathan addressed the gathering saying that there are two kinds of negotiations afoot in the country right now: one, about redefining the relationship between the religious majority and the minority and second, about the relationship between the State and the citizens. According to him, this case lies at the cusp of these negotiations. “Justice is not the charity of judges; they are paid to do this job to serve the citizens. It is the primary responsibility of the judiciary to shield individuals from State excesses.” He further added that the judiciary needs to stop playing the role of a paternal figure to adult citizens and lecturing them on what they can or cannot do. “It’s not the job of the judiciary to decide what is best for me. Their job is to ensure that I am allowed to exercise my rights as a citizen.”

Raj concluded the meeting with his address, warning that the case against Khalid and others is a narrative that the government building in the country as a new norm. “We all should understand that this right-wing government and the right-wing governments of the world want us to watch a genocide. They want to make it into a new normal. The Indian right wing is waiting for the Israelis to achieve the goals of their genocide so that they can do that too. If we don’t stand up and say that no human is illegal on this earth…that this world belongs to all—these genocides will continue to happen if we remain silent.”