Is There Any Hope From the Courts in the Delhi Riots Conspiracy Case?

Imagine this. Everyone around you is very angry with the government for passing a new law. Your family, friends, and many others are upset and you feel the same way. So, you decide to maybe organise or join a local protest camp.

Soon you find yourself attending meetings to plan the protests better. You discuss ideas and interact with hundreds of people and sometimes, some may suggest little violent ideas, but you always say no. You want the protest to be peaceful and orderly.

But one day, things go wrong. The protest turns violent, into a riot. You take shelter for the time being but days later, when riots are over, the police knock on your door and say you’re a “terrorist” for conspiring with others to cause the riots. You’re shocked and scared! They put you in jail but you are hopeful that the courts will come to your rescue. The truth is on your side, right? But time passes by, days turn to weeks, months, years. The trial in your case is nowhere in sight. Worse, courts don’t even give you bail. It feels like a never-ending nightmare.

What may be simply a figment of imagination to you is the lived reality of some of the many accused persons in the 2020 Delhi riots ‘larger conspiracy’ case.

So what is this “larger conspiracy case”?

If you remember, starting December 2019, most of India was protesting Prime Minister Narendra Modi’s Citizenship Amendment Act—the CAA. This law law is predominantly anti-Muslim since it only fast-tracks citizenship of undocumented persons from non-Muslim religions from neighbouring countries of Afghanistan, Bangladesh and Pakistan.

In Delhi, by mid-February 2020, many pro-CAA persons, also Modi government supporters, began agitating against anti-CAA protesters and by 23 February, a targeted and organised violence against Muslims was unleashed in the city which continued for three days.

Some BJP leaders like Kapil Mishra were recorded to have instigated the riots. Incidents of hate-speech mixed with feelings of religious nationalism led to targeting of Muslims by far-right fundamentalist groups.

53 people died in these deadly riots. Over two-thirds of them were Muslim. Over a dozen—Hindus. 700 others were injured. Dead bodies were being found in open drains, many Muslims went missing. Numerous mosques were set on fire and razed to the ground. Many Muslim families left the area and never returned. Many lives changed forever in those three days of bloodshed.

A recent report in The Times of India from February of this year states that the Delhi Police had arrested 2,619 persons in cases relating to the riots.

The cases are being investigated by three units of the Delhi Police – one, the Northeast district police, which is investigating non-fatal cases like loot, arson, etc. Two, the Crime Branch which is investigating 62 cases, including the 53 deaths that occurred. And three, also our area of interest, the Special Cell of the Delhi Police that is investigating only one case—the larger conspiracy case, looking at characters that apparently operated from behind-the-scenes and conspired to instigate the deadly riots.

Let’s get a little more detailed about this larger conspiracy case.

The Delhi Police’s Special Cell accuses 21 individuals of conspiring to incite the riots.

Some of these accused are political activist Umar Khalid, student activists Sharjeel Imam and Gulfishan Fatima, other activists like Salim Malik and Devangana Kalita.

Since September 2020, the police have so far filed five chargesheets, totalling 25,000 pages. A chargesheet is a formal document prepared after an investigation is completed and charges the accused of crimes uncovered during the investigation.

The 21 individuals stand accused of using protests against the CAA to organise chakka jams – Hindi for roadblocks, spark communal unrest, planning to “bring the government of India to its knees” and defaming India when US President Donald Trump visited on 22-23 February that year.

On the other hand, many of the accused argue that they neither made any provocative speeches nor are responsible for the riots that took place. They state that they only held peaceful protests as is their fundamental right. The accused have been seeking bail from the courts and only 9 of the 21 accused have succeeded so far.

The rest, majorly Muslim accused, including Umar Khalid, continue to run pillar to post asking the courts for bail. All of them have been denied bail from the lower courts, and some, as we will see in this video, were also denied bail from the Delhi High Court.

But why is it that the courts are hesitant to grant them bail? Especially since they’ve already spent more than 3-4 years in jail?

Well, the police have charged the 21 under the draconian anti-terror law, Unlawful Activities Prevention Act (UAPA), infamous for its widespread misuse against journalists, activists, and anyone who criticises those in power. Apart from this, 25 sections of the Indian Penal Code (IPC), 2 sections of the Prevention of Damage of Public Property Act, and 2 sections of the Arms Act. Very serious charges.

Let us understand how the UAPA and the judgements by the Supreme Court of India has led to its great misuse and possibly unjust jail time of individuals. We will look at this through the help of the case of Salim Malik. By the end of this video, I will also tell you why, despite the law being so strict and arbitrary, it is still possible for the courts to identify its misuse and come to the rescue of an individual.

The Case of Salim Malik

Very recently, on 22 April, the Delhi High Court denied bail to Salim Malik in this larger conspiracy case. Malik is a young Muslim man from North East Delhi whose crime was participating in the protests. Let’s look at how Malik’s case progressed in the courts.

Salim is an accused in three cases – one case, which relates to the incident of violence at Chand Bagh protest site. Second one which relates to vandalising a Maruti Car showroom. And third one, of course, the larger conspiracy case. In the first two cases, Salim has received bail from courts. But he continues to be in jail because his bail pleas have been rejected in the third case. So what really is happening in the third case?

A complaint was filed by one of the police officers against Umar Khalid and one Danish alleging that they conspired with many others to hatch the deadly riots. So the complaint got converted into an FIR. The Special Cell of the Delhi Police started looking into it. They then started making many other activists as accused in the case, including Salim. The police invoked the UAPA and a number of other IPC sections like I already told you.

The Police filed the first chargesheet before a lower court in September 2020. The police have also filed four supplementary chargesheets ever since. A supplementary chargesheet is a continuation to the main chargesheet and is filed when new facts have come up against the accused during further investigation.

Salim continued to be in jail, waiting for the right moment to seek bail. Because you know, courts are hesitant to grant bail when an investigation is ongoing, especially in UAPA cases.

So, after a long wait of one and half years in jail, Salim filed his bail plea before the trial court, in November 2021. 

The police argued against granting him bail. They told the court:

1. That the riots were a “deep-rooted conspiracy”. Okay fine, substantiate.
2. Several organisations were involved. Fine. But they were not banned organisations or terrorist organisations, right? So how is that a crime?
3. Salim was an organiser of a protest site where violence took place. Where is the proof?
4. 23 protest sites were created in Muslim-majority areas. Well, the CAA was pre-dominantly an anti-Muslim law so you can fairly expect the protests to be planned in Muslim-majority areas. What’s the problem here?
5. The accused learned lessons from the December 2019 riots that took place, which were at a smaller scale but they were able to plan better this time. Fine. This sounds like a good story but where is the proof?
6. Their idea was to escalate the protests to “chakka jam”. Again, fine. The courts have held that chakka jams are not illegal. They are a very normal mode of protest. So?
7. There was a conspiracy to move people from protest sites to designated locations on main roads, highways, block them, create confrontational situations with the police, attack non-Muslims, damage property by using petrol bombs, firearms, stones, and arranging finances to fund this. Okay. “There was a conspiracy” to do this. Where is the proof? You can’t just shout conspiracy, conspiracy and jail people. You see, the gap between what you say and what has actually happened cannot be filled by speculation that there was a “conspiracy”. Where is the proof?

These are the main allegations of the Delhi Police. Serious allegations with little proof.

Salim on his part argued that he was not a part of any WhatsApp groups which the police show as evidence of conspiracy. He argued that if he was an organiser of a protest site, like the police allege, why was he not part of any WhatsApp groups? It would be natural for an organiser to be kept in the loop right? Even if he was an organiser, would it qualify as [is it a “terrorist act”? He said that he was only there to cook and distribute food to protesters. He made no provocative speeches. The Call Data Records (CDRs) did not show his location in any of the places where violence took place.

The Police’s version sounds very flimsy. So you would expect the police to show concrete proof of this so-called conspiracy, right? Well, that’s the bit the police are perhaps struggling with.

So what do they do? Well, they massively rely on “he said, she said” statements. What do I mean by that? If you read the chargesheets, a number of statements from “protected witnesses” will be found supporting the police’s claims. Protected Witnesses are witnesses whose names and details are not revealed so as to protect them against any kind of intimidation or threats of violence. They have testified to seeing many of these accused, including Salim, conspire in “secret meetings” to kill 100-200 people, cause riots, buy arms, acid, petrol bombs, arrange funding, etc. If you read the court’s orders, you will see how heavily even the court relies on these witness statements to deny Salim his bail.

Now you would ask what are Salim’s lawyers doing if the case is so flimsy? For he is represented by one of the top lawyers in the country – Salman Khurshid.

Well, that is where the UAPA comes to the police’s rescue.

UAPA and Salim’s Case

Listen carefully. The UAPA is a great law, for the prosecution i.e. the State. You see the law is framed in such a manner that it becomes extremely difficult for the courts to grant bail to those accused of “terrorist acts”.

The UAPA punishes two things mainly – unlawful acts and terrorist acts. In the Delhi riots larger conspiracy case, the 21 individuals, including Salim, have been accused of committing both.

Section 43D(5) of the UAPA is the bail provision and is very problematic. Note that this strict bail provision is only applicable for “terrorist acts” not “unlawful acts” for which the normal bail conditions are applied.

This strict bail provision requires the court to grant bail to a terror accused only after 2 strict conditions are met: one, that the public prosecutor i.e. the state will be given an opportunity to be heard at the bail hearing before the court decides the bail request (which is fine, it can be easily satisfied). But the draconian condition is that when the court, the judge reads the case diary, chargesheet and the material collected by the police, the judge should be of the opinion that the allegations are not prima-facie true. Prima-facie means at the first impression.

Now this is a very risky conclusion for the court to reach at the bail stage. If the police say that we are still probing the case even after filing the chargesheet, which judge would say that no case is made out against the accused? That’s a very tough conclusion for a judge to reach at the bail stage. And remember, terror charges. What if the court sets an actual terrorist on bail? That’s it for the judge right? That’s how this UAPA works.

Now one way that existed for the courts to grant bail to those unfairly charged with the UAPA was to carefully go through the material submitted by the investigative agency and try to find faults in them. For example: if the judge finds that the police is heavily relying on a witness statement recorded under Section 161 of the CrPC. 161 CrPC statements are statements given to the police and are not admissible as evidence in court because the police can coerce and pressurise persons to give XYZ statements. Only the statements recorded before a magistrate under Section 164 of the CrPC are admissible in court. Now if the judge found that the police’s version heavily relies on 161 CrPC statements, it could’ve said that no admissible evidence exists and grant bail to the UAPA accused. So this was one way of check and balance despite a draconian law.

But thanks to the Supreme Court of India, this practice was barred. In the Watali case of April 2019, courtesy Justice A M Khanwilkar and Justice Ajay Rastogi, the Supreme Court asked the courts to not go into the merits or demerits of the case. So the courts can’t say that a particular material submitted by the investigators is not good enough as evidence. The judgement asked the courts to take the police’s version at face value. No need to apply too much mind into what is being submitted at the bail stage.

So of course, the police can possibly introduce any material, which may not even qualify as evidence later. What do I mean by this? Well, what is evidence, what is not evidence, whether evidence was obtained legally, illegally, all this is decided at the trial stage, not at the bail stage. And you would know, in every criminal case, arriving at the trial stage takes years, sometimes decades. So if a person is kept in jail until the day of judgement, say on the basis of a witness statement given to the police, which during the trial phase will obviously be discarded since it cannot be an evidence, and as a result, the police’s case falls flat and the accused is absolved of all charges, wouldn’t that be a great travesty of justice? That is exactly what the UAPA and the Supreme Court’s Watali judgement enables.

One more thing, the defence i.e. the accused individual cannot introduce any material supporting his request for bail. For example, Salim said that the call data records did not show him at any of the locations where riots took place. But despite this evidence, he cannot rely on it at the bail stage. The court is not supposed to take this into consideration, again, thanks to the Supreme Court’s Watali judgement which says that only material submitted by the investigative agency should be looked into and any justification for granting bail has to be on the basis of what is in the material.

Now this is a herculean task. What if the police are very effective, very careful at not including any material that may be in the favour of the accused. What if there is a witness statement that shows the accused is innocent? Well, the police will make sure not to include that in the material. And the accused also cannot introduce any new material. So, the court is only and only left with what the police are feeding it. What a terrible law, isn’t it?

The Supreme Court had an opportunity to fix the law but instead these two judges made it more draconian and possibly perpetuated a cycle of injustice and unfair incarcerations. The game is rigged from the very beginning.

What was the Supreme Court trying to achieve through this anti-liberty judgement in a country where lying in courts and fabrication of evidence by investigative agencies is so common? Prosecute the terrorists by all means, but a fair hearing is a fundamental right. Tying both hands of the defence and gagging them at the bail stage hardly helps advance this fundamental right.

Salim was denied bail by the lower court in October 2022, almost a year after he filed his bail application. The lower court heavily relied on witness statements to agree that there is a “prima-facie” case against the accused. Salim mounted a challenge to this order before the Delhi high court the same month, and after almost one and half years, his bail was again rejected by a two-judge bench of the Delhi high court last month, in April 2024.

If one reads the order of the High Court, the court again heavily relies on prosecution witnesses, some of whose statements will not make it as evidence during the trial and cross-examination.

Interestingly, the online news website Scroll had tracked down two of these protected witnesses who confessed to being pressured by the police to give statements and one of them even revealed that the police asked them to name one of the organisers of a protest site in Northeast Delhi.

What can the court do?

Well, the Supreme Court’s Watali judgement restricts courts from applying too much mind. Yet, a 2-judge bench of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani of the Delhi High Court granted bail to 3 of the 21 accused in the same larger conspiracy case – Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha.

The judgement was a landmark for liberty and a saviour against unfair use of UAPA by the state. The judgement, authored by Justice Bhambhani, said that there is a line between the constitutionally guaranteed right to protest and terrorist activity and that in the mind of the State, this line is somewhat blurred. The Court’s judgement narrowed down the scope of the UAPA, stating it can only be invoked against acts that have an impact on the ‘Defence of India’, “nothing more and nothing less”. On the three’s alleged roles in the riots, the court said that none of their actions could be considered a ‘terrorist act’ or a ‘conspiracy’. The three were set free.

Such a great order, so it had to be stayed immediately right? And so comes the Supreme Court of India. Immediately after Justice Bhambhani’s judgement, the Delhi Police obtained an effective stay against the observations narrowing the scope of the UAPA from the Supreme Court. Although the three accused were allowed to remain out on bail, the bench of Justice Hemant Gupta and Ramasubramaniam asked courts to not rely on this judgement for other cases. As a result, none of the other accused in the larger conspiracy case and countless other unspoken Indians could benefit from this progressive order of the Delhi High Court.

So is there still some hope from courts?

Well, despite the UAPA being so strict and Watali judgement completely tilting the law in the state’s favour, higher courts have gone into the material submitted by the investigative agencies and concluded that they don’t constitute “terrorist acts” and therefore, the strict bail condition is not applicable in such cases. Remember that the strict bail condition is only applicable for “terrorist acts”. If the court says that the allegations against the accused do not constitute “terrorist acts”, the strict bail condition will naturally not apply.

As a result, they have released some UAPA accused on bail. Example: Bhima Koregaon accused Anand Teltumbde, Vernon Gonsalves, Arun Ferreira, Shoma Sen, and others. But all of them had already undergone long jail times of 4 or 5 years.

But the Watali judgement asks courts to not go deep into the merits of the material submitted by the police right? So how are higher courts still granting bail after carefully looking at the material? Well, that’s an example of how justice is a lottery in this country. It really depends what kind of judge you have. Law is a game of interpretation. Some judges interpret laws liberally, some more conservative. A litigant is therefore left wondering agar lottery lag jayegi.

In the recent past, in February 2024, the Supreme Court openly pronounced that for special laws like the UAPA, “jail is the rule, not bail”. In a country where hardly anyone is punished for misuse of law and authority, where 77% of prisoners are undertrial, waiting for their trials to start, the Supreme Court boldly pronouncing such an anti-liberty rule is highly irresponsible to say the least. Fine, make jail the rule, but will you also guarantee a speedy trial and judgement for all the UAPA accused? If not , then why the need to make such a statement?

Salim’s request for bail on the grounds of delay in trial and the long incarceration already suffered by him were not dealt with by the Delhi High Court’s bench.

On 10 May, Salim challenged Delhi high court’s rejection of his bail before the Supreme Court. The matter was listed before a bench headed by Justice Bela Trivedi who was not willing to entertain the challenge. On sensing this, Salim’s lawyers withdrew his bail petition from the Supreme Court.

It’s been over four agonising years since Salim’s incarceration began. If Salim is ultimately acquitted, who will bear responsibility for these lost years in jail? The court that failed in ensuring a speedy trial? Or the prosecutor that shied away from telling the police they have no case? Or the police who are shouting conspiracy without any concrete proof? Or the political masters, who wield power over the police? Or the Supreme Court, that enabled this gross abuse of law and continues to propound theories like ‘jail is the rule’? Perhaps no one will be held accountable.

Salim’s story echoes countless others trapped in a labyrinth of injustice, including Umar Khalid and the other 7 Muslims in the larger conspiracy case, where each day spent in confinement erodes hope and corrodes faith in a fair judicial process.