Delhi riots: Why UAPA accused, including Umar Khalid and Sharjeel Imam, have been denied bail

They have spent more than five years in jail, and the trial is yet to begin.

The prosecution’s case

The prosecution has argued that the riots were a result of a “deep-rooted” and “well-orchestrated” criminal conspiracy hatched by the accused. Fifty four people, including a senior police officer and an Intelligence Bureau official, were killed, and more than 1,500 properties were damaged.

Section 15 of UAPA criminalises any act “with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India”.

Striking terror could be by use of “bombs, dynamite or other explosive substances or inflammable substances or firearms…or any other means”.

The prosecution’s case is that a “chakka jam” that the accused allegedly conspired to organise over WhatsApp messages and in “secret meetings” would fall under the definition of “any other means”.

Evidence with the police

Court records show that the evidence is heavily reliant on inferences from WhatsApp chats and testimony of “protected witnesses” who were present in “secret” meetings.

The identity of the protected witnesses is not revealed, and their statements cannot be tested through cross-examination. Court records show that witnesses identified as ‘Radium’ and ‘Sodium’ stated that in “secret meetings”, there were “open discussions regarding escalation of violence and setting parts of Delhi on fire”.

All accused argued that the statements of protected witnesses were unreliable, lacked specific details, and had been obtained belatedly after the accused were arrested.

The court did not refute these claims, but noted that at the bail stage, the credibility of the evidence cannot be examined, and it must be presumed to be true.

The specific charge against Gulfisha Fatima is that she created WhatsApp groups to organise women at protest sites. A protected witness has testified that Sharjeel Imam allegedly told a crowd that the government is anti-Muslim and the Citizenship Amendment Act “targets only Muslims”.

The court had to distinguish whether the evidence shows participation in a protest, which is a constitutionally protected right, or a larger conspiracy.

Reasons to deny bail

The definition of ‘terror’ will be tested only during the trial. Grant of bail in UAPA cases is restricted by law and court rulings.

The state has to pass a very low threshold for a court to deny bail — if there are grounds to believe that the accusation is prima facie true, bail can be denied. The High Court denied bail to each of the accused because it found reasonable grounds to believe the accusations against them were prima facie true.

“…A comprehensive examination of evidence at this stage may adversely affect the trial. The explanations advanced by the… Appellants in respect of the various statements of the protected witness cannot be considered in isolation,…especially in cases involving conspiracy. A mini trial at the stage of consideration of bail is impermissible,” the court said.

The accused argued that they deserved bail on grounds of parity with co-accused Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha, whose bail by the HC in 2021 was upheld by the Supreme Court.

However, the court said that the SC had directed that the HC’s bail to Kalita, Narwal, and Tanha “shall not be treated as a precedent and may not be relied upon by any of the parties in any of the proceedings”.

The accused also argued that their actions at worst fell under Section 13 of UAPA, which deals with “unlawful activities”, which is a lesser offence to which the bar of Section 43D(5) — under which bail can’t be granted without hearing the public prosecutor — does not apply.

To this, the court said that exercising its appellate jurisdiction in bail proceedings does not empower it to conduct a “detailed analysis of the evidence for determining the validity of the accusations”.

Delay in the trial

The Supreme Court in its 2021 decision in Union of India v K.A. Najeeb granted bail in a UAPA case where the accused had been in jail for more than five years, and 276 witnesses were still to be examined.

Referring to the restrictive bail conditions in Section 43D(5) of the UAPA, the court held that “the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence”.

The trial court in Delhi is currently hearing arguments on the preliminary question of whether these charges can even be framed against the accused. However, the question of bail is important because prolonged incarceration, even before charges are framed, is a violation of liberty.

The HC dismissed concerns about the delay in trial and said that “a hurried trial would also be detrimental to the rights of both the Appellants and the State”. The bail pleas were filed in 2022, and were passed on to three different Benches. Twice, they had to be heard afresh since judges who reserved the verdict did not pronounce the order and were subsequently transferred.