Umar Khalid begins 5th year in jail amid debate on what’s terror

At the heart of the case against Khalid is what constitutes a “terrorist act” and who determines that.

In the last five years, courts — twice by the trial court (in March 2022, May 2024) and once by the Delhi High Court (July 2024) — have indicated that courts have to accept the state’s version without going into the merits, however unsubstantiated it might seem, at least while hearing bail pleas.

The three bail decisions have cited the Supreme Court’s 2019 Zahoor Ahmed Shah Watali ruling to hold that courts cannot analyse the crux of allegations while considering bail in a UAPA case.

The trial is yet to begin against Khalid.

Under the stringent Unlawful Activities (Prevention) Act (UAPA), an offence, under Section 15 that defines a terrorist act, criminalises any “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.”

However, the provision qualifies that striking terror is 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 Khalid allegedly conspired to organise would also fall under the definition of “any other means.”

The evidence, for what the police allege is a months-long conspiracy, is in over two dozen statements by Saturn, Crypton, Romeo, Juliet, Echo. These are among the protected witnesses whose identities are kept secret by the prosecution – they have testified that Khalid took part in alleged “secret meetings” and confided in them that his eventual plan was to organise a chakka jam when then US President Donald Trump visited Delhi in 2020.

A reading of the statements shows that the prosecution’s evidence is that Khalid allegedly talked about “spilling blood” and made provocative speeches including saying that “aandolan khoon maangta hai” in “secret meetings” in the presence of relative strangers and also clicked pictures of these meetings and posted them on social media.

However, Khalid’s lawyers have repeatedly pointed out that these statements are hearsay and were revised several times, even recorded nearly 11 months after the FIR was registered.

In any case, Khalid’s counsel senior advocate Trideep Pais told the Delhi HC in June this year that these statements were not followed by any recovery of weapons or literature to show that he was associated with an unlawful, banned terror organisation.

The state’s version is accepted by courts even on circumstantial evidence against Khalid. For example, Khalid was not in Delhi when the riots took place but in Amravati in Maharashtra. However, this, the Delhi police argued, creates a “perfect alibi” for himself, while being a “silent whisper” in  organising protests and a “chakka jam” in “mixed neighbourhoods” in Delhi.

For example, a statement by a protected witness ECHO states that Khalid allegedly said “chakka jam hi aakhri raasta hai”, “khoon bahana padega”.

In March 2022, a Karkardooma court rejected Khalid’s first bail plea holding that the allegations were “prima-facie true” on the perusal of the chargesheet and accompanying documents for the limited purpose of bail and as such the “embargo created by Section 43D(5) of UAPA.” This is the restrictive bail provision under UAPA where courts are barred from granting bail unless they can determine that the allegations are prima facie untrue.

Upon appeal, the Delhi HC, too, in October 2022 accepted the trial court’s view. It said that Khalid’s name finds “recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots. Admittedly, he was a member of the WhatsApp group of Muslim students of JNU and participated in various meetings at Jantar Mantar, Jangpura Office, Shaheen Bagh, Seelampur, Jaffrabad and Indian Social Institute on various dates…He referred to the visit of the president of USA to India in his Amravati speech.”

Records show a “flurry of calls” after the riots between the appellant and other co-accused. “The cumulative statement of the protected witnesses indicates the presence and active involvement of the appellant in the protests, engineered against the CAA/NRC,” the court said.

While the appeal against the HC decision was accepted by SC, Khalid’s lawyers withdrew the plea when it came up for hearing. Clearly, lawyers strategised the withdrawal to avoid another unfavourable decision and, instead, chose to go back to the trial court.

However, the trial court, for a second time, rejected Khalid’s bail in May 2024. This decision is also under challenge before the HC.

Meanwhile, there are pleas before the Supreme Court challenging the wide ambit of how Section 15 of the UAPA is interpreted. The court will have to define what constitutes striking terror “by any other means.”

This decision can bring relief to Khalid before his trial begins.