2020 Delhi riots case: As SC to decide if 5-year jail term without trial is ‘pre-trial conviction’, here’s a recap of arguments

During the hearings, which began on October 31, the defence counsel argued that prolonged incarceration without the commencement of trial amounted to a “pre-trial conviction”, while the Delhi Police, represented by Solicitor General Tushar Mehta and Additional Solicitor General (ASG) S V Raju, characterised the riots not as spontaneous protests, but as a sinister plot to orchestrate a “regime change” similar to events in Bangladesh and Nepal.

Khalid and the other accused are charged under Section 15, which 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.”

‘Gandhian methods’ and ‘caricature of justice’

Senior Advocate Kapil Sibal, appearing for Khalid, argued there was no evidence linking Khalid to any violence, and also emphasised that he was not present in Delhi when the riots broke out.

Referring to a speech Khalid made in Amravati, Sibal told the court that the activist had only called for following “Gandhian methods” of civil disobedience. “We will not answer violence with violence… We will meet violence with non-violence,” Sibal quoted from the speech, arguing that advocating for chakka jams or road blockades is a legitimate form of protest in a democracy.

Sibal specifically challenged the invocation of the UAPA, asserting that even highway blockades or rail rokos, common in agitations like the farmers’ protests, do not qualify as ‘terrorist acts’ under Section 15 of the Act unless there is an intent to threaten the country’s economic security.

For Fatima, Senior Advocate Abhishek Manu Singhvi argued that keeping students and activists in custody for over five years without the trial beginning makes a “caricature of our criminal justice system”. Singhvi pointed out that the co-accused, Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, were granted bail in 2021, yet Fatima remains jailed on similar allegations.

Senior Advocate Siddharth Dave, representing Imam, contended that he was already in custody for other cases when the riots occurred. Dave argued that while Imam’s speeches might be unpalatable to some, they did not incite violence. He noted that Imam has been branded an “intellectual terrorist” by the state without conviction.

Other counsel, including Senior Advocate Salman Khurshid for Rehman, Senior Advocate Siddharth Agarwal for Haider, Senior Advocate Siddhartha Luthra for Ahmed, and Advocate Gautam Khazanchi for Khan, argued on grounds of parity with bailed co-accused and the lack of direct evidence linking them to funding or arming rioters.

‘Educated terrorists are more dangerous’

Countering the defence, the Delhi Police maintained that the accused were “anti-nationals” masquerading as intellectuals. ASG Raju argued that “educated terrorists” are more dangerous than foot soldiers because they plan the conspiracy.

He dismissed the defence’s plea of delay, stating that the trial could conclude within two years if the accused cooperated. He went on to cite protected witness statements and WhatsApp chats as evidence that the violence was not organic but a calculated attempt to bring the government to its knees.

The prosecution played video clips of Imam’s speeches, specifically those in which he spoke of cutting off the “Chicken Neck” corridor connecting the Northeast to the rest of India. The police alleged that the protests against the Citizenship Amendment Act were a facade for a conspiracy to paralyse the government and attract international attention during the visit of then-US President Donald Trump.

Solicitor General Mehta submitted that the riots were “pre-planned, choreographed and orchestrated” to threaten the sovereignty of India. The police argued that under Section 43D(5) of the UAPA – a stringent provision that makes bail difficult if the court finds the accusations prima facie true – the accused did not deserve relief.

Regarding the delay in the trial, the police contended that the accused themselves were responsible for prolonging the proceedings, alleging that they filed successive applications to defer arguments on the framing of charges, insisting on waiting for further investigation and additional material. The defence denied this, attributing the stall to the police filing multiple supplementary charge sheets over the years.