The flimsy case against Umar Khalid is a blueprint for the state’s strategy against dissent

On Thursday, the Karkardooma court in New Delhi ordered that Umar Khalid’s application for bail be dismissed. Additional Sessions Judge Amitabh Rawat wrote in the order dismissing bail that while he agreed with the defense counsel Trideep Pais “that there were some inconsistencies in the statements of some protected witnesses” against Umar Khalid, nevertheless, “on perusal of the charge-sheet and accompanying documents…” he was of the opinion “that the allegations against Umar Khalid are prima facie true.” Judge Rawat goes on to say that in a conspiracy “one act cannot be read in isolation. At times, if read by itself, a particular act or activity may appear innocuous, but if it is a part of a chain of events constituting a conspiracy, then all the events must be read together.”

Umar and several others have been charged in connection to an alleged conspiracy behind the communal violence that took place in Delhi, in February 2020. According to government estimates, fifty three people died in the violence, and more than five hundred people were injured. Delhi Police arrested Umar in September 2020 under FIR 59 and charged him under several sections of the Unlawful Activities Prevention Act including terrorist activity and conspiracy, and also under provisions of the Indian Penal Code including murder, rioting, sedition, conspiracy and promoting communal enmity. Umar was also formally arrested in October 2020 under FIR 101 but was granted bail in this case in April 2021. 

Umar will remain in prison unless this dismissal of his bail application under FIR 59 is overturned on appeal to a higher court, because, a judge thinks that the “inconsistent statements” of prosecution witnesses and “innocuous acts” undertaken by the accused are not by themselves adequate to prima facie establish innocence. 

The prosecution’s assumption that a conspiracy exists is based on stringing together isolated acts by the accused, which would be innocuous were there not a conspiracy in play. In other words, it is the assumption of a conspiracy that renders an “innocuous” action, when seen with other actions (that have been performed by others and not even by the accused) as evidence of that very conspiracy. It is an assertion that something is what someone says it is just because they say so.

Umar and the others charged in the Delhi violence case participated to various extents and in various capacities in the movement against the Citizenship Amendment Act of 2019. The movement took the form of protests across the country in the winter of 2019–2020. The state has tried to make the case that participants in the anti-CAA movement like Umar were involved in unlawful activities despite, as the hearings have shown, very little evidence substantiating these claims. In doing so, the police have ignored far more direct links to the violence and possible triggers by CAA supporters, right-wing groups and even members of government who made public calls for violence but who have either not been charged or were granted bail very quickly. 

In closely-watched bail hearings that have extended over eight months, the prosecution has referred to meetings, messages, speeches, reports of face-to-face meetings, traces of the occurrence of phone conversations, and testimonies by named and protected witnesses either to investigators or before a magistrate and disclosure statements of the key accused. It has failed to make any direct connections between these events and the violence. I followed the court proceedings live online and found the prosecutor’s strategy simultaneously flimsy and alarming. In various instances, the prosecution made its case by overreaching, by twisting the meanings of words, or by taking the actions of the accused out of their very apparent contexts. 

On 8 December 2019, a group of people including Umar, the activist and scholar Sharjeel Imam, the politician and activist Yogendra Yadav, the activist Nadeem Khan who works with the United Against Hate campaign, and anti-CAA activist Tahira Daud met in in Delhi’s Jangpura neighbourhood. This was a few days after the union cabinet introduced the Citizenship Amendment Bill in parliament. The group met to discuss ways of opposing the bill and to prevent it being passed into law. The protest method of a chakka jaam, or road blockade, was one of the points of discussion. The prosecutor framed this meeting as the first meeting of the alleged conspiracy. He claimed that the meeting was “secret.” However, the chargesheet provides as evidence of the meeting, a candid photograph that features Imam and Yadav in an animated discussion. Daud also referred to the meeting in her statement to investigators.

The prosecutor also tried to make the case that references to chakka jaams were instigations to violence. The chakka jaam is a fairly common tactic used during all kinds of political mobilisations in India. The Bharatiya Janata Party led massive chakka jaams against hikes in petrol prices that paralysed Delhi’s transport in the summer of 2011, when it was in opposition. As recently as 3 January 2020, the BJP conducted a comprehensive chakka jaam against the Delhi government’s liquor licensing policy. The farmers protests that started in December 2020 and lasted more than a year took the form of chakka jaams around Delhi and forced the government to repeal its three farm laws. 

The Citizenship Amendment Bill became law on 12 December 2019. The chargesheet speaks of a meeting on 13 December after the first student protest at the campus of Delhi’s Jamia Milia Islamia university, and alleged that this meeting was the prelude to violence in and near Jamia. On 13 December Imam gave a speech at the university in which he talked about disruption as a form of protest but made clear that such disruption should not take the form of hurting people or of damaging property. In his speech, which the chargesheet reproduces verbatim, Imam said, “As far as constitutionality is concerned, we are all for it Constitutionality and the Constitution are two different things. Remember this point. Constitutionality means that we will not burn property, ok? We will not kill people, ok? But, brothers, can’t we disrupt things. Disruption is not a difficult thing to achieve, is it? We have to be organized to be able to do that.”

On the afternoon and evening of 15 December, Delhi police entered the Jamia campus without permission. They claimed later that they had been in pursuit of anti-CAA protestors who had been trying to march from the campus to Jantar Mantar in Central Delhi. The police fired tear gas shells into the library, beat students up, and later forced them to march out of the campus with their hands raised in the air. On the same evening, Muslim women began a sit-in at Shaheen Bagh, and led one of the biggest, longest, most disruptive and most peaceful protests against the CAA and NRC. 

The supplementary chargesheet invokes another meeting on 27 December, in the living room of an apartment near Shaheen Bagh. Although this meeting does not involve Umar, it is important in the prosecution’s narrative. The prosecution alleges that during this meeting, Imam strategically withdrew from Shaheen Bagh to allow for what the chargesheet calls “fake secularization” the protest. It goes on to allege that “after having exited Shaheen Bagh and unto this date, Sharjeel Imam was not only spewing communal and seditious venom in cities and towns in the Hindi heartland of North India but was also visiting protest sites, arranging manpower and supervising the spread of his anti-national rot across Delhi.” Imam was consistently critical of left secular strategies, which put him at odds with Umar,  whose embrace of a more inclusive idiom of dissent, drawing strongly from left-democratic-secular traditions, was well known by then. He also had no further role to play in the protests as he was arrested three days after this meeting and has been in prison since. Neither fact has deterred the prosecution from treating him as a co-conspirator in the violence that occurred almost two months later. It interprets his retreat not as a stepping away from but stepping up the alleged conspiracy. 

The chargesheet mentioned a few more meetings, including one on 8 January 2020. The police alleged that the 8 January meeting was where the alleged conspirators plotted to cause disruptions during the then US President Donald Trump’s visit to India, suggesting that the chakka jams were only a prelude to more sinister actions such as well-planned riots. News reports have since pointed out that Trump’s visit to India was made public only on 14 January. After these news reports pointed out the discrepancy, the police changed its strategy in a third chargesheet filed in the case to say that the meeting was a conspiratorial discussion, but now, on general terms. The prosecution produced a protected witness who made two statements about the meeting. The witness claimed that Umar, Khalid Saifi—one of the founding members of the activist collective United Against Hate and a co-accused—and the former Aam Aadmi Party councillor Tahir Hussain met in a building near Shaheen Bagh on 8 January. The witness made two statements to the police. In his first statement in May 2020, the witness said he only stood outside and saw the three men go in. In the later statement made in September 2020, he claimed to have entered the building and overheard plans to cause a big blast during Trump’s visit, which was still days from being announced. Both statements have been referred to in the order granting Umar bail under FIR 101. 

Perhaps the most glaring reach of imagination on the prosecution’s part is its interpretation of a speech Umar delivered in Amravati on 17 February 2020. In the speech, Umar outlined a brief history of the Shaheen Bagh protest. He then articulated the crystallisation of a new philosophy of civic resistance, the contours of which are leaderless, embodied by women, non-violent, intent on peace, democratic participation and dialogue and the concept of chakka jam. While referring to what he thought the protestors could do in order to attract the attention of the world when Trump comes visiting, he offered an ethic of non-violent protest. In one section of his speech, he said, “We won’t respond to violence with violence. We won’t respond to hate with hate. If they spread hate, we will respond to it with love. If they thrash us with lathis, we keep holding the tricolour. If they fire bullets, then we will hold the Constitution. If they jail us, we will go to jail singing, ‘Saare Jahaan Se Acha Hindustan Hamara.’”

The prosecution has offered an interpretation of this speech to say that Umar was actually instigating riots during Trump’s visit. To do this, it presented a snippet of the speech that showed Umar saying, “…on the 24th (of February), when Donald Trump comes to India, we will tell that the Prime Minister and Government of India are trying to divide the country; they are destroying the values of Mahatma Gandhi; and that the people of India are fighting against the rulers. If the rulers want to divide India, the people of India are ready to work towards uniting the country. We will come out on the streets. Will you people come out.” As Umar’s defense has shown, the prosecution obtained this video from the news channel Republic TV, which in turn picked it up from the Twitter feed of Amit Malviya, the head of the BJP’s IT cell. Malviya had used the clip that was edited out of context and tweeted it saying, “Umar Khalid, already facing sedition charges, gave a speech in Amaravati on 17Feb, where he exhorted a largely Muslim audience to come out on streets in huge numbers when Trump arrives in India on 24th. Was the violence in Delhi planned weeks in advance by the Tukde Tukde gang?” The prosecution would not have been able to make such a case if they had presented the entire speech as evidence. 

During the violence, Umar forwarded a request for calm that had been sent to him by a senior Delhi police official to the Delhi Protest Solidarity Group, a WhatsApp group that filmmaker Rahul Roy created, whose members included activists opposed to the CAA and the intent of which was to support pan-India protests against the CAA and NRC. Umar was not in Delhi at the time. The prosecutor conjectured at the hearing that the police officer may have sent Umar this message as an “investigative maneuver” to see whether he would pass it on. He argued that this proved that Umar was actually the “hidden hand” behind the violence. 

Sections of the media have been busy reporting court proceedings, even at this preliminary stage of a bail hearing, almost as if they were the trial itself. Some news reports have presented the prosecutor’s arguments as unassailable proof of Umar’s guilt as the principal conspirator in a plot to unleash mayhem in February 2020. A lawyer representing Pinjra Tod activists Natasha Narwal and Devangana Kalita told the court that investigators were leaking details of a chargesheet to the media before they were shared with the defense. During Umar’s bail hearings, a right-wing legal news website called Law Beat tweeted screen grabs of Whatsapp chats that presented by the prosecutor, even as the hearing was in progress. These Whatsapp chats contained private information such as the phone numbers of individuals who were not even the accused. These screen grabs circulated for a full day, before one of the senior defense counsels persuaded the judge to pass an order the next day restraining the press from publishing inappropriate information on social media. The judge’s order has not stopped the right wing YouTube channel, Satya Sanatan, from publishing portions of the same proscribed chats. 

That upheaval of violence that occurred on the between 23 and 25 February in northeast Delhi shook many of us who call Delhi our home. This was the largest single episode of violence in the national capital since the anti-Sikh pogrom of 1984. Even more disturbing is the way in which these events  triggered one of the biggest roundups of people in Delhi and India’s recent history. The Deccan Herald reported that one year after the violence, 1,753 people—820 Hindus and 933 Muslims—had been arrested with 557 people given bail. Those arrested included political dissidents, and a large number of ordinary Muslim citizens. The police has refused to divulge the names of  all the people who have been given bail stating that this information was sensitive. On 8 July 2020, Praveer Ranjan,  the special commissioner of police in Delhi’s crime and economic offences wing, sent a letter to officers and personnel of the Delhi police to take due care while questioning or arresting Hindu youths from north east Delhi in connection with the violence of February 2020. A report in Scroll.in showed that several of the Hindu accused released on bail went on to secure tickets as BJP candidates for municipal polls due in April. 

The prosecution, in its arguments against Umar’s bail, offered very little evidence to substantiate its theory of conspiracy against what it claims are the key protagonists of the violence. However, its strategy is important because if the prosecutor is able to convince the judge that there is evidence of conspiracy enough to deny bail, then he will only have to confirm the strategy of the bail hearings in the actual trial. The entire trial is important because it can set precedent for the treatment of all terrorism and sedition cases and also for the state’s strategy to deal with dissent.