Facts of the Umar Khalid Bail Judgment

Allegations

The allegations against Umar Khalid, as deciphered from the Umar Khalid bail judgment, can be summarized as taking part in a conspiracy to create communal disharmony in India through orchestrated mass-scale communal riots in the National Capital Territory of Delhi, which through its wide implication would disturb the unity of entire India on religious lines (also mentioned security and sovereignty along with unity).

Further, he, along with another accused Sharjeel Imam, masterminded the successful execution of the conspiracy by orchestrating mass-scale riots in a part of Delhi. It should be noted that the allegation was not only to spread communal disharmony in Delhi but throughout India. The prosecution story is that the accused enabled the execution in four phases acting as the main conspirator and mastermind in all the four phases.

In the first phase in December 2019, he directed the creation of WhatsApp (WA) groups through Sharjeel Imam and saw through its successful execution.

In the second phase, from December 2019 to February 2020, he inter alia used the already created WA groups and created further WA groups, through and in conspiracy with Sharjeel Imam, for mobilization of students and general Muslim public for becoming participants in violent protests and mini-riots, by spreading false propaganda against CAA-NRC as part of the mobilization, albeit all the while misrepresenting the mobilization as a peaceful and secular protest movement.

He further, acting in coordination with Sharjeel Imam, ensured physical participation of the duo in various meetings as well as the delivery of inflammatory speeches across India for mobilization of students and general Muslim public as aforesaid. The mobilization steps also included preparation and circulation of “inciteful” pamphlets in Muslim dominated areas.  Further, the mobilized participants were used for orchestrating violent riot-like protests in various parts of Delhi leading to actual riots at various locations, viz. Jamia Milia Islamia, Shaheen Bagh, and parts of North East Delhi.

In the third phase, overlapping with the second phase, from January 2020 to February 2020, the accused masterminds; i.e., Umar Khalid and Sharjeel Imam; took final preparatory steps for execution of their above-mentioned conspiracy. More particularly, Umar Khalid attended two meetings, first on 8 January, 2020, and then on 23-24 February, 2020, wherein his participation as an organizer of violent riots has been alleged.

In the first meeting, he is alleged to have explored the financial aspects of procuring acid, firearms, etc; and, in the second meeting at Seelampur, he is alleged to have directed the attendees to escalate the protest into a riot and suggested attacking policemen for bringing the government on its knees and to force it to withdraw CAA-NRC. He is further alleged to have directed the co-accused persons to induce women to gather knives, bottles, acids, stones, chilli powder and other dangerous materials for their use in the riot.

In the fourth and final phase in February 2020, overlapping with the second and the third phases, Umar Khalid coordinated ground level operations moving protesters from one site to another to cause mass chaos through “Chakka Jaams”, completely blocking the public roads and highways, which eventually led to mass scale riots in North East Delhi.

Evidence

The allegation is that of criminal conspiracy and the direct evidence produced in support of the same against Umar Khalid, indicating “meeting of minds”, are the two meetings he attended in January and February of 2020.

The other evidence are WhatsApp chats, speeches, facebook posts, photographs, published views, and pamphlets. In these evidence, mostly against Sharjeel Imam, there are corroborative acts with respect to the conspiracy: call to cut off Assam and North East, absolving Jinnah, calling for Muslim Unity against Hindu State, call to violence, call to disruption through “chakka jaams”, call to paralyse governance, differentiating between Kashmir and Delhi in reference to possible army action, admission of organizing “chakka jaam”, etc. All these evidence, irrespective of their relevance as standalone evidence, are relevant wrt conspiracy only when  conspiracy per se has been proved through direct evidence.

There are also evidence showing preparation for committing conspiracy, viz. creation of WA and social media groups, organization of and participation in meetings for mobilization of participants, preparation of pamphlets, etc. These evidence are also relevant wrt conspiracy only when conspiracy per se has been proved through direct evidence.

Judgment

There are three aspects of the Umar Khalid bail judgment:

1. Merits

As far as merits are concerned, the judge restrained herself from looking into the details of the evidence. More specifically, she declined to enter into a finding whether the offence against Umar Khalid was made out under section 13 or 15 of Unlawful Activities (Prevention) Act (UAPA). She accepted all evidence of the prosecution, including statements of the protected witnesses, to be true on its face value. Thus, she reached a conclusion that a prima facie case was made out against Umar Khalid and denied bail to Umar Khalid on application of section 43(D) of UAPA.

2. Parity

On the question of parity with other co-accused; namely Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita; who had already been granted bail by a co-ordinate bench, the judge while making reference to corroborative and preparatory evidence but while ignoring the lack of direct evidence of the conspiracy, ruled that their role was grave and can’t be compared with that of the other co-accused.

3. Prolonged Incarceration

On the question of prolonged incarceration because of the long-winded trial, the judge admitted the long-winded nature of the trial and even recommended it to be so, but she declined to grant bail on finding the interest of the nation in not getting attacked on its “unity”, “integrity”, and “sovereignty” to be superior to individual rights.

Author’s Analysis of the Umar Khalid Bail Judgment

Politics

This Umar Khalid bail judgment can’t be analyzed without discussing politics, not to impute motive on the judge but certainly to impute one on the prosecution. Both Umar Khalid and Sharjeel Imam are ex-students of JNU with left leaning political ideology. Umar Khalid specifically was being seen as a rising students’ leader with potential similar to that of Kanhaiya Kumar, a Congress politician; however, Umar Khalid can’t be categorized exactly similarly to him inspite of the strong presence of Muslim leaders in Congress. He was emerging more as a Muslim leader per se, probably filling the vacuum created after partition and which has not been filled till date by anybody — I personally don’t believe Jinnah did anything good, but whatever.

The Indian intelligence agencies are always scanning political activities to curb any such emergence of either a Muslim or a Dalit leader. It is more difficult to target Dalit leaders, but Muslim leaders are generally soft targets unless they are from Congress, who has been chosen to represent Dalits and Muslims in the Indian political spectrum. So, the prosecution story has to be seen in the same context, especially when Sharjeel Imam has openly made calls for Muslim unity while absolving Jinnah. They were indeed on the hit list of Intelligence Bureau.

Prosecution Story

Having drawn the context, let us now see the prosecution story. The prosecution has clearly converted an ordinary communal riot into an attack on the “unity”, “security” and “sovereignty” of India. They are claiming the local riots in North East Delhi to be having a nation wide implication. Probably, what they apprehended was gradual polarization of Muslims in Assam leading to threats of disintegration by formation of a separate state of “Bangladeshi Muslims” and possibly Rohingyas in Assam and North East, and they probably saw the localized Delhi riots to be having a multiplier effect.

Of course, this is a far-fetched speculation reserved only for paranoid intelligence officers, and such speculation should never make an entry in a court room, but here it indeed has through the prosecution story furtively, and through the judgment directly, where “integrity” has also been added to the list of “unity”, “security”, and “sovereignty”.

Lack of Evidence and Arbitrary Judgment

There is a complete lack of evidence to support the prosecution story. They are claiming a criminal conspiracy to attack “unity”, “security” and “sovereignty” of India through a well-orchestrated communal riot, and the only direct evidence they have produced is an alleged meeting where Umar Khalid has been alleged to have directed the co-accused persons to escalate the protest into a riot.

The defense pleaded alibi. The judge rejected it stating that their role in the conspiracy has been established through their inflammatory speeches, and the alibi doesn’t help them. The judge completely misled herself. I have classified inflammatory speeches as corroborative evidence, and that is the only correct classification. The judge by considering the corroborative evidence dehors the direct evidence has made a blunder. The plea of alibi has not been rejected with respect to the evidence of “meeting of minds”, and thus no “meeting of minds” was proved by the prosecution.

Last but not the least, the judge has completely failed in discharging her duty by not checking the overreach by the prosecution. The prosecution made a successful attempt of equating the attack on the abstract (and non-legal) idea of “nation” to the attack on the physical reality of state. No statute or constitution allows interpretation of the attack on “unity”, “security”, “sovereignty”, or “integrity” of a state as anything other than the attack on territorial integrity of the state.

The interpretation of penal laws is strict because these laws punish people. These are not like fundamental rights, which should be interpreted liberally. The prosecution claimed a standalone act of riots in a localized area to be having the wider implication of affecting the territorial integrity of the state, which is ridiculous. Further, the prosecution would say the riots were timed with the visit of Trump to Delhi, which led to global defamation of India (thereby categorizing it as an attack on integrity of India), which is even more ridiculous.

India is a territorial physical reality, not a chaste woman, whose integrity will be violated if somebody called her a prostitute — regrets for the unfortunate analogy, but this is precisely what explains the motive of the prosecution; they tried creating a human manifestation of “Bharat Mata” in a court room, and, indeed, succeeded in it. I don’t know what to call a judge who falls for such a trap and prolongs the incarceration of an accused, juxtaposing the artificially created interest of the “nation” with the precious individual rights of under trial prisoners and upholding the first thereof.

DOWNLOAD THE JUDGMENT FROM HERE