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The Delhi High Court is in the midst of hearing an appeal by student-activist Umar Khalid against the decision of the sessions court denying him bail.
Khalid, who has spent 18 months in jail after being arrested as a chief conspirator of the Delhi Riots in February 2020, argues that there is no substance to the allegations against him by the Delhi Police, and that no prima facie case for terror offences is made out in the charge sheet filed by them.
The bail proceedings in the lower court lasted months, almost becoming a mini-trial with detailed examination of the allegations and the evidence cited by the police.
On the very first day, after looking at certain comments made by Khalid in a speech at Amravati on 20 February 2020, the judges appeared to agree with the police's narrative, observing that the speech was "obnoxious" and "prima facie this is not acceptable."
On the second day, when looking at other comments in the speech about the central government's actions, the bench asked if it was "proper" to use the term 'jumla' for actions of the Prime Minister, and that there had to be a "lakshman rekha" when it came to criticism.
It should be noted at the outset that judges are entitled to ask whatever questions they need to during a hearing so that they can arrive at their conclusions, and that oral observations do not amount to final orders.
However, the questions and comments made by the judges over the first two days of this hearing raise certain questions of their own, especially when the court has expressed a prima facie view on aspects of the case.
The speech given by Umar Khalid at Amravati on 20 February 2020 about the anti-CAA (Citizenship [Amendment] Act) movement is the only overt act attributed to him by the Delhi Police for which there is incontrovertible evidence.
The Delhi Police (initially relying on selective snippets of the speech as edited by Bharatiya Janata Party (BJP) IT Cell head Amit Malviya) claim that this speech amounted to incitement – a claim refuted by Khalid's lawyers, who have pointed out that the speech specifically called for non-violence.
The judges took exception to a part of the speech where Khalid talked about the role played in the freedom struggle by Jamia Millia Islamia University, and how the Rashtriya Swayamsevak Sangh (RSS) had instead been 'agents' of the British at the time.
"We have no qualms about permitting free speech," the judges added, "but what are you saying? Does it not attract Section 153A or 153B of Indian Penal Code?”
Section 153A of the IPC deals with promoting enmity or hatred between different communities on the basis of religion, caste, language, place of birth, etc.
Section 153B deals with imputations that a "class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community" bear true allegiance to the Constitution or uphold India's sovereignty, or be citizens of India.
It is unclear how an assertion about the RSS can lead to the invocation of these sections of the IPC, or how Khalid's speech claims that only one community fought for Independence.
A translation of the part of the speech in question (it was made in Hindi) makes it clear that while Khalid was not saying that Hindus were 'dalals' of the British, or that only Muslims fought for independence:
Unless the RSS and the Hindu Mahasabha are now counted as representative of the entire Hindu community rather than specific organisations, the idea that a Section 153A offence is attracted by Khalid's comments makes little sense.
The comments about the people of India participating in the freedom struggle and making sacrifices, including those massacred at Jallianwala Bagh, make it clear that the speech isn't only valorising the role of Muslims in the freedom struggle, countering the idea floated by the judges that "only one particular community" fought for independence.
The judges note that this comment about certain 'ancestors' being agents of the British is raised multiple times in the speech, with it also cropping up when Khalid talks about the way in which Jamia Millia Islamia University played a role in the freedom struggle.
This was relevant since protests at Jamia had been the touchstone for the anti-CAA movement in Delhi, and had been cracked down on by the Delhi Police, as Khalid elaborated:
Again, it is clear that the 'your ancestors' being referred to are the 'ancestors' of the ruling party in the central government, that is, the RSS and the Hindu Mahasabha.
Criticism of their role in the freedom struggle is not an attack on Hindus as a community which could have certainly amounted to offences under Sections 153A and 153B.
The judges certainly have to be fair and examine if there were attempts to incite hatred between communities in Khalid's speech, as the right to freedom of speech does not protect incitement of violence against a particular community.
However, a bare reading of the transcript of the speech makes it clear that there was no criticism of the Hindu community as a whole, which makes it difficult to understand why the judges would make a prima facie observation that the speech was unacceptable on these grounds.
On the second day, the judges continued to look into the speech made by Khalid at Amravati. This time they took exception to reference made by Khalid to the 'jumlas' of the current government.
Speaking about the Shaheen Bagh anti-CAA protests, Khalid termed the offer of talks made by the central government to the protesters "another jumla by this government."
Khalid also criticised the way in which the Prime Minister had gone to the United States a few months ago and appeared to have endorsed Donald Trump for President there and then said that "sab changa si" when it came to the country.
To this, the bench said:
There is, however, no such concept of a lakshman rekha in law when it comes to criticism of the Prime Minister of India.
Yes, the criticism cannot include incitement of violence, and yes, the law on defamation may need to be examined, but these are general restrictions on the right to freedom of speech that would apply to any criticism.
The grounds for restriction of freedom of speech are laid out in Article 19(2) of the Constitution – being rude about the Prime Minister of India is not one of them.
Even in the Kedar Nath Singh judgment of the Supreme Court which held that sedition was constitutional, the apex court had said that:
If a citizen wants to term certain actions or utterances of the government or even the Prime Minister, to be 'jumlas,' that is, connoting someone merely 'playing with words,' or connoting someone 'promising much in words, but delivering less in action,' they do have every right to do so, as long as they are not doing so in a manner which is a threat to public order.
In his speech, Umar Khalid specifically rejected a call to violence, saying:
Unless Narendra Modi wants to privately file a defamation suit or a case for criminal defamation against Umar Khalid, there is no basis for the court to take objection to Khalid's comments about him, in these circumstances.
The charges that the Delhi Police seek to bring against Umar Khalid and the other accused in the case include offences under the dreaded UAPA (Unlawful Activities [Prevention] Act).
This is crucial to the bail hearings for the accused in the case, as under Section 43D(5) of the UAPA, the courts cannot grant bail to a person accused of a terror offence under the UAPA, if "there are reasonable grounds for believing that the accusation against such person is prima facie true."
The sessions court when rejecting Khalid's bail application had specifically said that this embargo applied in his case because it found that the accusations of terror offences by him were prima facie true.
Khalid's lawyer, Trideep Pais, has sought to argue that the allegations against Khalid do not disclose any terror offences, and therefore, Section 43D(5) should not act as a bar on him getting bail.
The Delhi High Court had, when considering the bail applications of three of Khalid's co-accused – Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita – conducted a similar analysis and found that even going by the police's allegations, nothing they had done prima facie amounted to terror offences.
As a result, the three of them had got bail, though the Supreme Court did pass an interim order saying the orders in their favour should not be treated as precedent per se.
What is curious to see is that when looking at Khalid's speech, the bench not only once again took a view that it was "offensive," but then framed the question before it as whether there was a violation of Section 13 of the UAPA.
While Section 13 of the UAPA has in fact been invoked in the charge sheet filed by the Delhi Police, this is actually irrelevant when it comes to the question of whether Khalid is to be denied bail.
Section 13 of the UAPA deals with punishment for those who commit an 'unlawful activity' – the definition of which basically covers promotion of secessionism, threats to the integrity of India, and disaffection against India. This falls within Chapter III of the UAPA.
However, the embargo on bail in Section 43D(5) of the UAPA only applies to offences under Chapters IV and VI of the UAPA, that is, commission of terrorist acts, financing of terrorist acts and conspiracy to commit terrorist acts.
Khalid has also been accused of committing terror offences by the Delhi Police, so it is therefore slightly unclear why the Delhi High Court is examining whether a Section 13 offence has been conducted at the stage of bail.
It is perhaps in this context that the judges have raised eyebrows at Khalid's use of the terms 'krantikari' and 'inqilab,' which deal with revolutions. But once again, Khalid makes clear that he is not seeking secession or any overthrow of the Government of India, but of the current ruling dispensation – which does not amount to a Section 13 offence.
At the same time, given we have the speech of Umar Khalid easily available to view, and the right to freedom of speech still exists in this country, the lines of questioning and comments by them during the hearing do lead to some questions for citizens.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Published: 06 May 2022,07:33 AM IST