New Delhi: Counsel for Umar Khalid, Sharjeel Imam and Gulfisha Fatima – whom the Delhi police accuses of planning and executing the 2020 Delhi riots – made their arguments for bail before the Supreme Court on Friday (October 31) even as they have spent over five years in jail without trial in the case.

Appearing before a bench of Justices Aravind Kumar and N.V. Anjaria, the petitioners' lawyers argued that they are not linked to the violence that broke out in the capital city in February 2020 killing more than 50 people and noted that their clients have all been jailed for well over five years.

Police have invoked sections of the Indian Penal Code pertaining to rioting, sedition, murder and promoting enmity as well as sections of the anti-terror Unlawful Activities (Prevention) Act in the controversial FIR No. 59 in the case. The Delhi high court denied bail to Khalid, Imam, Fatima and six other accused on September 2.

The bench adjourned the matter to first thing on Monday, when it will hear arguments by co-accused Meeran Haider, Mohammad Saleem Khan and Shifa ur-Rehman as well as of the Delhi police, reported LiveLaw.

Khalid's lawyer Kapil Sibal told the bench that his client was not present when the riots occurred and that no witness had given statements connecting him to “any actual incident of violence that ensued in northeast Delhi”, where the riots occurred.

No physical evidence was recovered from Khalid connecting him to violence or rioting, while no allegations or recoveries related to raising terror funds were made, argued Sibal.

“There are 751 FIRs. I'm charged in one. If it's a conspiracy, my lords, it's a bit surprising, no, my lords, if I am … responsible for the riots?” the lawyer and Rajya Sabha MP asked the bench.

He also pointed out that Khalid was discharged from the only other FIR he was named in – which was filed in northeast Delhi's Khajuri Khas – in 2022.

Referring to a speech Khalid had given in Amravati, Maharashtra days before the riots and which the police have deemed “provocative”, Sibal said his client had spoken “nothing about any acts of violence” or riots in that address.

“A bare perusal of the speech, which invokes Gandhian principles of non-violence and makes reference to the Constitution of India, makes it unequivocally clear that the same cannot be considered provocative by any stretch of the imagination,” the counsellor said.

Siddhartha Dave, appearing for Imam, noted that the student activist was already in custody in connection with a January 2020 case when the riots took place.

“Also my lords, I want to stress on this part, I [Imam] am not an accused in a single one of those riot cases … I am only accused of having given inflammatory speeches,” said Dave, adding that Imam has been bailed in the various cases pertaining to these speeches but not in FIR No. 59.

“If your lordships were to see those speeches, I abhor violence in those speeches,” argued Dave, adding that Imam had only called for protests.

Fatima's lawyer Abhishek Manu Singhvi asked the court what the point of a trial would be if his client only receives bail after six, seven or eight years after the case is registered.

“The concept of liberty is, you put me on stringent conditions, where will I run, what will I do. But you put me in jail because you have 140 protected witnesses and 900 other witnesses, that can't be criminal justice of any kind,” said Singhvi, saying that a “distortion of the criminal justice system” was taking place in the case.

“No allegation, photograph, movie, anything about violence wherever I [Fatima] was present, or my [protest] sites” has been made, he said, also pointing out that his client is the only remaining woman accused to still be in custody in the case.

Delhi police alleges ‘conspiracy to strike at the very heart of India's sovereignty’

The Delhi police, which filed its affidavit in the apex court on Thursday, days after the bench took a dim view of its request for two more weeks' time to do so, argued against bail for the accused.

“The conspiracy hatched, nurtured and executed by the petitioner was to strike at the very heart of the sovereignty and integrity of the country by destroying the communal harmony; instigating the crowd not only to abrogate public order but to instigate them to an extent of armed rebellion,” it alleged in the affidavit.

“Note,” it added, that “the international theory developed in the past few years [has] termed these kinds of organised/sponsored protests as ‘regime change operation(s)’.”

The Citizenship (Amendment) Act, 2019 (CAA) that the accused had protested against in the run-up to the riots was “carefully chosen” as a topic in order to “serve as a ‘radicalising catalyst’ camouflaged in the name of ‘peaceful protest’,” argued the police.

It had also blamed the petitioners for the delay in the case and argued that their claim that there are over 900 witnesses is a “red herring” as after discounting repetitive or technical witnesses there would be “only 100-150 witnesses which are material to prove the offence”.

Much of the Delhi police's case rests on the accused activists' presence or participation in WhatsApp groups during the time of the nationwide protests against the CAA.

Their time in jail has been marked by multiple appeals and subsequent postponements and rejections by courts, in what rights defenders worldwide have decried as a travesty of justice.

Questions continue to hover over the Delhi police's partisan role in investigating the violence.

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