(This story was first published on 26 September 2020 and is being republished on 15 June 2021 in light of three UAPA accused – Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha – being granted bail by the Delhi High Court.)
How were the Delhi riots engineered?
This is the fundamental question that the Delhi Police’s Special Cell has to answer through its investigation into ‘FIR 59’, the case that deals with the conspiracy to cause the carnage that ripped through North East Delhi in February 2020.
The ‘how’ of it all is what sets this particular case apart, as there are separate FIRs and cases dealing with the specific incidents of murder, arson, and other violence that constituted the riots.
The Delhi Police provided their first set of answers to the question in a 17,000 page charge sheet submitted to the Delhi court dealing with the matter on 21 September – central to which were the accused’s plans for and creation of road blocks or ‘Chakka Jaams’.
But why are these Chakka Jaams considered so important by the police? And how does the law view such actions? Are they crimes under the IPC and the UAPA?
Delhi Riots: When Does a Chakka Jaam Become a Crime?
1. The Police's Conspiracy Theory
The crux of the police’s conspiracy theory against the accused is as follows:
- In December 2019, a group of individuals and organisations opposed to the BJP government and the Citizenship Amendment Act (CAA) passed in that month, entered into a conspiracy to “overawe the Government of India and to undermine the authority of the Parliament which had enacted the CAA, thus destabilizing the very foundations of democracy.”
- The key to this conspiracy was a specific modus operandi: setting up protest sites which would be transformed into road blocks – ‘Chakka Jaams’ – in strategic areas in Delhi at the right moment, which would then be used to create riots meant to achieve the conspiracy’s goals.
- The riots were to be organised at the time US President Donald Trump visited India, which would have the effect of causing immense international embarrassment for the Centre, and shaking people’s faith in the government to protect them.
The police claim that this gives them grounds to charge the accused with not just regular IPC offences for violence, but sedition, spreading hate between communities, and, crucially, offences under the Unlawful Activities (Prevention) Act – the dreaded UAPA.
These include conspiracy to commit terrorist acts (Section 18, UAPA) as well as the actual commission of terrorist acts (Section 15) and ‘unlawful activities’ (Section 13).
Expand2. The Centrality of the Chakka Jaams to the Charges
At the heart of each of these three charges, one finds the accused’s plan to create road blocks at different sites across Delhi.
- The very first stirrings of the alleged conspiracy, at meetings involving Umar Khalid and Sharjeel Imam (neither of whom have been named as accused in this charge sheet, but will be under supplementary ones) in December 2019, were to indoctrinate and mobilise the youth to use Chakka Jaams to protest against the CAA which would be precursors to large-scale violence.
- The violence at protests against the CAA in Jamia and other parts of Delhi are also alleged to have involved the creation of Chakka Jaams as a precursor – incidents from 13-20 December 2019 were supposedly the “beta version” of what would happen in February.
- Then comes the meeting at Chand Bagh on the night of 16-17 February at 2 am, when the plan to create Chakka Jaams during Donald Trump’s visit were made, allegedly with the express plan for these to escalate into communal violence.
- Finally, there was the creation of the Chakka Jaams at Jafrabad on the night of 22 February, and then in the Chand Bagh area on 23 February by members of the Delhi Protests Support Group, JCC, etc that ignited the riots.
Now a lot of the Delhi Police’s conspiracy theory comes down to claims that can only be conclusively determined at trial.
The intent behind the original Chakka Jaam plans involving Sharjeel Imam. Umar Khalid’s “directions” to Pinjra Tod leaders that the protests they were supervising had to escalate into violence and to stockpile weapons with the women of Seelampur. The details of the secret meetings. that showed the plans to create road blocks were always meant to create communal violence.
All these aspects come from statements by the police’s witnesses who were supposed to have been present at these meetings, including their protected witnesses whose identities have not been revealed in the charge sheet. Which makes it difficult to make any assessment of their veracity at this point.
The exact moment the actual violence began on 24 February, whether with an attack by anti-CAA protesters or pro-CAA protesters, or the police themselves, is also a matter of dispute.
However, the planning for the organisation of the Chakka Jaams and the Chakka Jaams that actually took place are not really in dispute – whether in public and private messages from the accused and the facts on record. Which means that we can at this time consider some of the legal questions that arise from them.
Expand3. Are Chakka Jaams Themselves a Crime?
The first question to ask, of course, is whether a Chakka Jaam is in and of itself a crime.
Senior advocate Sidharth Luthra, one of the foremost authorities on criminal law in India, points out that the very act of organising a Chakka Jaam can constitute various offences under the IPC, or potentially even the Motor Vehicles Act, which prohibits blocking of roads.
“A road block may not necessarily mean a riot, though it can easily fall into IPC offences,” he says. These include the IPC offences connected with ‘rioting’, Luthra explains:
“What is a riot in the IPC? It’s whenever force or violence is used by an unlawful assembly. What is an unlawful assembly? When five or more people gather to resist a law or legal process, to commit mischief or criminal trespass. Mischief is the cause of any loss or damage to property – it doesn’t require any specific intent. Mischief is in the widest of terms, and can even apply to blocking a road.”
The charge sheet against the accused under FIR 59 includes charges for rioting (including with an armed weapon) and mischief under the IPC. If these aspects can be proven, then even if the larger conspiracy isn’t proven, the organisation of the Chakka Jaams can in themselves be considered a crime, albeit not the extremely serious UAPA offences the Delhi Police has in mind.
Expand4. What About the Right to Protest?
Other senior criminal law practitioners like Mihir Desai, Vrinda Grover and Satish Tamta agree that there are various offences under the IPC that organising a Chakka Jaam could fall under, but they note how it this is also a question of free speech and expression.
“There are enough precedents to demonstrate that Chakka Jaam is an expression of the right to protest and freedom of assembly,” Grover says. “What is a Chakka Jaam? Protesters are blocking a road, so they may be hindering free movement of traffic and people; but it also falls within the domain of the exercise of freedom of expression and assembly, as long as it’s peaceful.”
“People have a fundamental right to peacefully protest,” argues Desai. “Many times the protests flows over on to the streets and jam the roads – and it has been happening historically even from the independence movement. This is part of everyday life in India.”
He and Grover both give examples of ‘Rail Roko’ agitations, the road blocks during the Jat reservation stir, and even of international cases like Occupy Wall Street.
But why commit an act like this, given its potential to stray into illegality?
Grover suggests that:
“What the protesters are doing is to draw attention of the State to their issues, their concerns. It can cause inconvenience to others. Let us not forget that in Delhi this was preceded by many days of participatory and peaceful dharnas. The idea is to persuade the government to engage with the protesters. Protests are inherent to the grammar of democracy.”
All this is of course predicated on there being no direct evidence to show that the protesters at the road blocks did not engage in any violence. If they did, then the IPC offences mentioned above would immediately come into play.
Expand5. Can Chakka Jaams Amount to Offences Under the UAPA?
For the prosecution case in FIR 59, it will do little to show that the Chakka Jaams organised by the accused amounted to offences under the IPC – even rioting. As mentioned earlier, the real prize here is showing that they justify charges under the UAPA, so that they can justify their claims of a vicious overarching conspiracy.
Tamta, Grover and Desai, however, are firmly of the belief that this is a bit of a hard sell. “A Chakka Jaam can be an infraction of the law, but it doesn’t amount to a terrorist or unlawful activity or criminal conspiracy to trigger riots,” Grover says.
Tamta argues that the invocation of the UAPA is less about the actual case itself. “This is to silence people who take up the cause of others, who speak for others, like Yogendra Yadav.”
Desai, who has fought several UAPA cases over the years, including for some of the Bhima Koregaon accused, agrees with this sentiment, and says:
“I personally believe there is nothing terrorist or unlawful about these things. Converting this into terrorist activities and unlawful activities under UAPA, though – these governments are like tigers that have tasted blood. In the Bhima Koregaon and other cases, they realised that if they use UAPA, they can put everybody behind bars for years together. So anything which happens, use the term terrorist act, unlawful activity and put people behind bars. That is precisely what they are doing in Delhi.”
Setting aside the potential political machinations at play, though, would one be able to make a case for the Chakka Jaams in this case to rise to the level of offences under the UAPA?
Tamta warns that this will require a very high standard of proof, especially since much of the incontrovertible evidence, for instance the many WhatsApp chats and social media posts by the accused, only talk about organising road blocks. Witness statements saying that in private the accused actually said they wanted to incite violence, will no doubt be relevant, but are unlikely to be enough to prove that violent intent without some other corroborative proof.
Proving the “mutation of the Chakka Jaams from a protest to communal violence” is also something Grover is skeptical about, as this requires “cogent, reliable and admissible evidence to prove every element of the alleged criminal conspiracy.” Theorising and surmising to fill in the gaps in the case will not work for the prosecution.
Sidharth Luthra declines to comment on whether or not invoking the UAPA is justified in cases like this, as he says this is a matter of evidence which will have to be proved at trial. However, he does ask that if the Delhi Police was of the opinion that the case fell within the ambit of the UAPA, why was it not transferred to the NIA?
“Under the NIA Act, once it’s a Scheduled Offence, then according to Section 6, it has to go to the central government. Central government then has to take a call whether state police will investigate or NIA. Has the Delhi government referred this matter to the Centre? Has the central government taken a call on it – and if not, why not?”
Sidharth Luthra, senior advocate(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
The Police's Conspiracy Theory
The crux of the police’s conspiracy theory against the accused is as follows:
- In December 2019, a group of individuals and organisations opposed to the BJP government and the Citizenship Amendment Act (CAA) passed in that month, entered into a conspiracy to “overawe the Government of India and to undermine the authority of the Parliament which had enacted the CAA, thus destabilizing the very foundations of democracy.”
- The key to this conspiracy was a specific modus operandi: setting up protest sites which would be transformed into road blocks – ‘Chakka Jaams’ – in strategic areas in Delhi at the right moment, which would then be used to create riots meant to achieve the conspiracy’s goals.
- The riots were to be organised at the time US President Donald Trump visited India, which would have the effect of causing immense international embarrassment for the Centre, and shaking people’s faith in the government to protect them.
The police claim that this gives them grounds to charge the accused with not just regular IPC offences for violence, but sedition, spreading hate between communities, and, crucially, offences under the Unlawful Activities (Prevention) Act – the dreaded UAPA.
These include conspiracy to commit terrorist acts (Section 18, UAPA) as well as the actual commission of terrorist acts (Section 15) and ‘unlawful activities’ (Section 13).
The Centrality of the Chakka Jaams to the Charges
At the heart of each of these three charges, one finds the accused’s plan to create road blocks at different sites across Delhi.
- The very first stirrings of the alleged conspiracy, at meetings involving Umar Khalid and Sharjeel Imam (neither of whom have been named as accused in this charge sheet, but will be under supplementary ones) in December 2019, were to indoctrinate and mobilise the youth to use Chakka Jaams to protest against the CAA which would be precursors to large-scale violence.
- The violence at protests against the CAA in Jamia and other parts of Delhi are also alleged to have involved the creation of Chakka Jaams as a precursor – incidents from 13-20 December 2019 were supposedly the “beta version” of what would happen in February.
- Then comes the meeting at Chand Bagh on the night of 16-17 February at 2 am, when the plan to create Chakka Jaams during Donald Trump’s visit were made, allegedly with the express plan for these to escalate into communal violence.
- Finally, there was the creation of the Chakka Jaams at Jafrabad on the night of 22 February, and then in the Chand Bagh area on 23 February by members of the Delhi Protests Support Group, JCC, etc that ignited the riots.
Now a lot of the Delhi Police’s conspiracy theory comes down to claims that can only be conclusively determined at trial.
The intent behind the original Chakka Jaam plans involving Sharjeel Imam. Umar Khalid’s “directions” to Pinjra Tod leaders that the protests they were supervising had to escalate into violence and to stockpile weapons with the women of Seelampur. The details of the secret meetings. that showed the plans to create road blocks were always meant to create communal violence.
All these aspects come from statements by the police’s witnesses who were supposed to have been present at these meetings, including their protected witnesses whose identities have not been revealed in the charge sheet. Which makes it difficult to make any assessment of their veracity at this point.
The exact moment the actual violence began on 24 February, whether with an attack by anti-CAA protesters or pro-CAA protesters, or the police themselves, is also a matter of dispute.
However, the planning for the organisation of the Chakka Jaams and the Chakka Jaams that actually took place are not really in dispute – whether in public and private messages from the accused and the facts on record. Which means that we can at this time consider some of the legal questions that arise from them.
Are Chakka Jaams Themselves a Crime?
The first question to ask, of course, is whether a Chakka Jaam is in and of itself a crime.
Senior advocate Sidharth Luthra, one of the foremost authorities on criminal law in India, points out that the very act of organising a Chakka Jaam can constitute various offences under the IPC, or potentially even the Motor Vehicles Act, which prohibits blocking of roads.
“A road block may not necessarily mean a riot, though it can easily fall into IPC offences,” he says. These include the IPC offences connected with ‘rioting’, Luthra explains:
“What is a riot in the IPC? It’s whenever force or violence is used by an unlawful assembly. What is an unlawful assembly? When five or more people gather to resist a law or legal process, to commit mischief or criminal trespass. Mischief is the cause of any loss or damage to property – it doesn’t require any specific intent. Mischief is in the widest of terms, and can even apply to blocking a road.”
The charge sheet against the accused under FIR 59 includes charges for rioting (including with an armed weapon) and mischief under the IPC. If these aspects can be proven, then even if the larger conspiracy isn’t proven, the organisation of the Chakka Jaams can in themselves be considered a crime, albeit not the extremely serious UAPA offences the Delhi Police has in mind.
What About the Right to Protest?
Other senior criminal law practitioners like Mihir Desai, Vrinda Grover and Satish Tamta agree that there are various offences under the IPC that organising a Chakka Jaam could fall under, but they note how it this is also a question of free speech and expression.
“There are enough precedents to demonstrate that Chakka Jaam is an expression of the right to protest and freedom of assembly,” Grover says. “What is a Chakka Jaam? Protesters are blocking a road, so they may be hindering free movement of traffic and people; but it also falls within the domain of the exercise of freedom of expression and assembly, as long as it’s peaceful.”
“People have a fundamental right to peacefully protest,” argues Desai. “Many times the protests flows over on to the streets and jam the roads – and it has been happening historically even from the independence movement. This is part of everyday life in India.”
He and Grover both give examples of ‘Rail Roko’ agitations, the road blocks during the Jat reservation stir, and even of international cases like Occupy Wall Street.
But why commit an act like this, given its potential to stray into illegality?
Grover suggests that:
“What the protesters are doing is to draw attention of the State to their issues, their concerns. It can cause inconvenience to others. Let us not forget that in Delhi this was preceded by many days of participatory and peaceful dharnas. The idea is to persuade the government to engage with the protesters. Protests are inherent to the grammar of democracy.”
All this is of course predicated on there being no direct evidence to show that the protesters at the road blocks did not engage in any violence. If they did, then the IPC offences mentioned above would immediately come into play.
Can Chakka Jaams Amount to Offences Under the UAPA?
For the prosecution case in FIR 59, it will do little to show that the Chakka Jaams organised by the accused amounted to offences under the IPC – even rioting. As mentioned earlier, the real prize here is showing that they justify charges under the UAPA, so that they can justify their claims of a vicious overarching conspiracy.
Tamta, Grover and Desai, however, are firmly of the belief that this is a bit of a hard sell. “A Chakka Jaam can be an infraction of the law, but it doesn’t amount to a terrorist or unlawful activity or criminal conspiracy to trigger riots,” Grover says.
Tamta argues that the invocation of the UAPA is less about the actual case itself. “This is to silence people who take up the cause of others, who speak for others, like Yogendra Yadav.”
Desai, who has fought several UAPA cases over the years, including for some of the Bhima Koregaon accused, agrees with this sentiment, and says:
“I personally believe there is nothing terrorist or unlawful about these things. Converting this into terrorist activities and unlawful activities under UAPA, though – these governments are like tigers that have tasted blood. In the Bhima Koregaon and other cases, they realised that if they use UAPA, they can put everybody behind bars for years together. So anything which happens, use the term terrorist act, unlawful activity and put people behind bars. That is precisely what they are doing in Delhi.”
Setting aside the potential political machinations at play, though, would one be able to make a case for the Chakka Jaams in this case to rise to the level of offences under the UAPA?
Tamta warns that this will require a very high standard of proof, especially since much of the incontrovertible evidence, for instance the many WhatsApp chats and social media posts by the accused, only talk about organising road blocks. Witness statements saying that in private the accused actually said they wanted to incite violence, will no doubt be relevant, but are unlikely to be enough to prove that violent intent without some other corroborative proof.
Proving the “mutation of the Chakka Jaams from a protest to communal violence” is also something Grover is skeptical about, as this requires “cogent, reliable and admissible evidence to prove every element of the alleged criminal conspiracy.” Theorising and surmising to fill in the gaps in the case will not work for the prosecution.
Sidharth Luthra declines to comment on whether or not invoking the UAPA is justified in cases like this, as he says this is a matter of evidence which will have to be proved at trial. However, he does ask that if the Delhi Police was of the opinion that the case fell within the ambit of the UAPA, why was it not transferred to the NIA?
“Under the NIA Act, once it’s a Scheduled Offence, then according to Section 6, it has to go to the central government. Central government then has to take a call whether state police will investigate or NIA. Has the Delhi government referred this matter to the Centre? Has the central government taken a call on it – and if not, why not?”Sidharth Luthra, senior advocate
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)