Opinion The case of Umar Khalid and others is a textbook example of what justice is not

And I recall the starlit evening in Bhiwandi in January 2020. Umar Khalid had enthralled and inspired a packed stadium of a lakh plus with his reasoned and passionate speech against the Citizenship Amendment Act. Beginning with “inquilabi istaqbal” (revolutionary greetings), he invoked Bhagat Singh, B R Ambedkar and Mahatma Gandhi to call for a non-violent struggle against the unjust and unconstitutional CAA that reduces Muslims to second-rung citizenship. No different from the one in Amravati, which is among the grounds for the Delhi High Court finding him prima facie guilty of giving “inflammatory speeches on communal lines”.

When concluding, he invited everyone present to switch on their mobile phone torch and join him in chanting azadi. Ham kya maangein … azadi … CAA se azadi … bhookh se azadi … Ambedkar wali azadi. The stadium swayed with him in this cry for freedom. Not from someone or something, but for realising equal citizenship. Freedom to belong. Freedom to embrace as co-equals. I could never forget that moment. Stars swarming in the dark. And the brightest in the middle, just the kind of leader India needs, just the kind of hero Muslims await.

As I trudge through the tortured argument of the Delhi High Court, I see those stars blowing out, one by one. I turn to Amir Aziz again, for solace: “Tum raat likho ham chand likhenge/ tum jail mein dalo ham deewar faand likhenge”. I wait to read that moon.

And I wonder how history might remember this 133-page judgment. Legal scholar Gautam Bhatia’s blog posts (“Indian Constitutional Law and Philosophy”) have tracked the journey of this extraordinary case where the courts have adopted what he calls an “eyes wide shut” approach to serve as the “stenographer for the prosecution”. He calls out the strange reasoning of the present order: “The Court falls back upon a Moscow Trials-style invocation of ‘conspiracy’, grounded in vague and uncorroborated statements from anonymous ‘protected’ witnesses, filling in the gaps in the prosecution’s case with its own assumptions and inferences…” No more needs to be said about this judgment that is bound to sit next to the Supreme Court’s infamous ruling in the ADM Jabalpur case as a textbook example of what justice is not.

One day, a historian will record the sheer absurdity of the Delhi riots conspiracy theory that turns victims into perpetrators and protestors into conspirators, a C-grade film script that makes impossible demands on credulity. After all, it takes a leap of creative imagination to suggest that Umar Khalid, under 24×7 police protection and electronic surveillance since 2018, could design a conspiracy to engineer violence in the capital, that such a conspiracy was executed through a WhatsApp group with 100-plus members, that these Muslim activists engineered violence that resulted in an overwhelming proportion of Muslims being killed.

I happen to have some personal knowledge of this case, especially about two of the accused who I knew and worked with during the anti-CAA protests. Anyone who has known, watched or heard Umar Khalid knows that he does not have a communal bone in his body. He was an ideologue and ambassador-at-large of the anti-CAA movement, mostly away from Delhi in the months of January and February 2020, and at an arm’s length from the protests in Delhi. Similarly, Khalid Saifi, as an activist equally popular among Hindus and Muslims in his East Delhi locality, was among those most concerned that the protest should not take any confrontationist, let alone violent, turn. I cannot imagine them being remotely involved in any communal violence. I am sure this holds true of other accused as well, though I cannot speak in their cases with personal knowledge and experience.

If Umar is in jail for saying the CAA was anti-Muslim, I should be too. If Khalid is in jail for coordinating local protests against the CAA, I should be too. Indeed, the charge-sheet filed by the Delhi Police identified me as one of the key conspirators and ascribed some Mogambo-style dialogues to me. The judges could have asked themselves: If the Delhi Police take their own conspiracy theory seriously, why did they not act against me or even call me once for questioning in these five years?

More than the text, history might remember the context of a series of curious coincidences that marked this case. A bail case that should have been decided in a week was dragged for months, not once but thrice. One after another, two judges of the Delhi High Court just sat over the judgment in this case, after reserving orders on the conclusion of the hearing. They were both promoted and transferred as chief justices of other high courts without passing any order in this case. The latest order was pronounced after two months of hearing, three days before Justice Shalinder Kaur was to retire.

History might also record that just when the judges were tying themselves in knots to discover communal provocation in Umar Khalid’s speeches, they could not notice some rather straightforward videos of hate speeches by Ragini Tiwari, Pradeep Singh, Yati Narsinghanand, and of course, the honourable ministers Kapil Mishra and Anurag Thakur. It would also record the oddity of denial of bail to these undertrials for well over five years in a country where Gurmeet Ram Rahim, convicted of rape, has been allowed 14 outings in the last eight years. History might remember this case, not so much as a trial of these nine accused, but as a trial of India’s criminal justice system. And the verdict may not be kind.

Finally, a footnote, a macabre gesture of kindness. Responding to the plea of inordinately long incarceration, five years plus for each of the accused, and the snail pace of the trial, which is yet to begin and may take up to 10 years at this rate, the judgment assures us that the case is “progressing”, that “the pace of the trial will progress naturally”. Not just that, it is kind enough to assure us, “A hurried trial would also be detrimental to the rights of both the Appellants and the State!”

The poet appears to make more sense here: “Tum adalaton se baithkar chutkule likho/ ham sadakon, deewaron par insaf likhenge”.

The writer is member, Swaraj India, and national convenor of Bharat Jodo Abhiyaan. Views are personal