The Delhi High Court’s recent rejection of the bail petitions of nine activists who have been accused of various offences pertaining to the 2020 Delhi riots, perpetuates a grave miscarriage of justice. The 2020 Delhi riots took place in the aftermath of the protests against the Citizenship Amendment Act (CAA)-National Register of Citizens (NRC), which were taking place across India in December 2019 and January 2020. During the communal violence that ensued, 54 people lost their lives.
The nine activists were, admittedly, part of the protests against the CAA-NRC. This, everyone agrees, is their legitimate constitutional and democratic right. Furthermore, there is no record of any of these activists having instigated or incited violence, or called for riots. Indeed, one of them, Umar Khalid, is on the record, in a public meeting, calling for peace and non-violence.
However, in order to link these nine activists to the riots that ensued, the State has argued that they were all part of a far-reaching conspiracy to foment communal violence as a means of protest. A conspiracy is something that is particularly easy to allege, as conspiracies, by their very nature, are secret and underground. They have also been the weapons of choice of regimes throughout history who wish to squelch dissent. Proving a conspiracy, on the other hand, is rather more difficult.
In order to bridge the gap between allegation and proof, the State has resorted to a range of circumstantial pieces of evidence, and the testimony of certain anonymous, “protected” witnesses. On circumstantial evidence, the record is so flimsy that any fair appraisal would discard it outright. For example, one of the pieces of evidence that is relied upon by the State is that the accused created WhatsApp groups for organising a protest, and that — in the aftermath of the riots — there was a flurry of phone calls between the organisers of these WhatsApp groups. Not only does this not prove anything, but it does not even indicate anything: it is the most natural thing for activists to be in touch with each other on the news of a riot breaking out — in fact, it would be silence that would be more suspicious. The prosecution’s record abounds with such allegations, which require not only massive leaps between facts and inferences, but sometimes even involve reading the record in a counter-intuitive way.
{{/usCountry}}In order to bridge the gap between allegation and proof, the State has resorted to a range of circumstantial pieces of evidence, and the testimony of certain anonymous, “protected” witnesses. On circumstantial evidence, the record is so flimsy that any fair appraisal would discard it outright. For example, one of the pieces of evidence that is relied upon by the State is that the accused created WhatsApp groups for organising a protest, and that — in the aftermath of the riots — there was a flurry of phone calls between the organisers of these WhatsApp groups. Not only does this not prove anything, but it does not even indicate anything: it is the most natural thing for activists to be in touch with each other on the news of a riot breaking out — in fact, it would be silence that would be more suspicious. The prosecution’s record abounds with such allegations, which require not only massive leaps between facts and inferences, but sometimes even involve reading the record in a counter-intuitive way.
{{/usCountry}}Similarly, the statements of the “protected” witnesses are not only anonymous, but are also vague, generic, and completely uncorroborated. It is the easiest thing in the world to get an “anonymous” individual to say that they “heard” a person planning violence. Whether this should stand in a court of law is a different matter altogether.
Unfortunately, it seems to have. The case against Gulfisha Fatima, one of the nine activists, is almost entirely based on the testimony of anonymous witnesses, and virtually nothing else (a few years ago, other individuals against whom the case was very similar, were granted bail). However, the High Court has accepted this, and denied her bail.
Taken together, a reading of the High Court’s judgment suggests that, in effect, what has actually been criminalised is the democratic right of people to protest and dissent against laws that they consider to be unjust and oppressive. Despite the fact that none of these people ever called for violence, or against whom there is any direct evidence of having incited violence, they have been imprisoned on the basis of a far-fetched allegation of “conspiracy”, with the net cast in such broad and wide terms, that just about anyone involved in these protests could also be incarcerated, even though they bear no connection, or no responsibility, to the violence that actually occurred. This heralds a dangerous new narrowing of civil liberties in India, almost to the vanishing point.
It is worth noting, at this point, that most of these activists were arrested in early 2020, and have now spent over five years in jail. At the time of writing, the trial has not yet commenced. This case has over 900 witnesses. By a conservative estimate, even if the trial starts tomorrow (which it will not), it will take at least a decade to complete. What can one say about a justice system that keeps people in jail for 15 years on the strength of anonymous witness statements and allegations of conspiracy that do not have a single direct instance of instigating or inciting violence to back them up? It does not appear to be a justice system in any meaningful sense.
The High Court’s judgment, it must be noted, is the third occasion on which these activists have been denied bail; the previous two judgments — in 2022 — also proceeded on such flimsy reasoning, and drawing of inferences from a very patchy record (this is called the “eyes-wide-shut” approach).
At this point of time, the case will proceed to the Supreme Court: At the time of writing, three of the accused have approached the apex court against the Delhi High Court order.
While the nine activists have already spent half a decade in jail — coincidentally, the amount of time that Captain Alfred Dreyfus, of the infamous “Dreyfus Trial” was imprisoned — time that can never be returned, it is high time that this continuing injustice was put to an end. While human lives matter more than anything else, it is also important to remember that whether it is the Dreyfus Affair, Stalin’s Moscow Trials, or the present case, such proceedings also reveal a society’s commitment to the rule of law and to justice. It is up to the Supreme Court to demonstrate that we have not yet come completely untethered from these basic principles.
Gautam Bhatia, a Delhi-based advocate, is the author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution. The views expressed are personal