The Delhi High Court is in the midst of hearing an appeal by student-activist Umar Khalid against the decision of the sessions court denying him bail.
Khalid, who has spent 18 months in jail after being arrested as a chief conspirator of the Delhi Riots in February 2020, argues that there is no substance to the allegations against him by the Delhi Police, and that no prima facie case for terror offences is made out in the charge sheet filed by them.
The bail proceedings in the lower court lasted months, almost becoming a mini-trial with detailed examination of the allegations and the evidence cited by the police.
While the appeal in the Delhi High Court was always going to be closely watched thanks to the nature of this case, the matter is now being followed even more closely, thanks to the comments made by the bench of Justices Siddharth Mridul and Rajnish Bhatnagar on the opening two days of the hearings.
On the very first day, after looking at certain comments made by Khalid in a speech at Amravati on 20 February 2020, the judges appeared to agree with the police's narrative, observing that the speech was "obnoxious" and "prima facie this is not acceptable."
On the second day, when looking at other comments in the speech about the central government's actions, the bench asked if it was "proper" to use the term 'jumla' for actions of the Prime Minister, and that there had to be a "lakshman rekha" when it came to criticism.
It should be noted at the outset that judges are entitled to ask whatever questions they need to during a hearing so that they can arrive at their conclusions, and that oral observations do not amount to final orders.
However, the questions and comments made by the judges over the first two days of this hearing raise certain questions of their own, especially when the court has expressed a prima facie view on aspects of the case.
What Obnoxious Comments, Exactly?
The speech given by Umar Khalid at Amravati on 20 February 2020 about the anti-CAA (Citizenship [Amendment] Act) movement is the only overt act attributed to him by the Delhi Police for which there is incontrovertible evidence.
The Delhi Police (initially relying on selective snippets of the speech as edited by Bharatiya Janata Party (BJP) IT Cell head Amit Malviya) claim that this speech amounted to incitement – a claim refuted by Khalid's lawyers, who have pointed out that the speech specifically called for non-violence.
The judges took exception to a part of the speech where Khalid talked about the role played in the freedom struggle by Jamia Millia Islamia University, and how the Rashtriya Swayamsevak Sangh (RSS) had instead been 'agents' of the British at the time.
"This is offensive, obnoxious. Don’t you think? These expressions being used, don’t you think they incite people? You say things like aapke purvaj angrezon ki dalali kar rahe the, you don’t think it is offensive ... It is almost as if we distinctly get the impression that it was only one particular community that fought for India’s independence."Delhi HC bench, as quoted by The Indian Express
"We have no qualms about permitting free speech," the judges added, "but what are you saying? Does it not attract Section 153A or 153B of Indian Penal Code?”
Section 153A of the IPC deals with promoting enmity or hatred between different communities on the basis of religion, caste, language, place of birth, etc.
Section 153B deals with imputations that a "class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community" bear true allegiance to the Constitution or uphold India's sovereignty, or be citizens of India.
It is unclear how an assertion about the RSS can lead to the invocation of these sections of the IPC, or how Khalid's speech claims that only one community fought for Independence.
A translation of the part of the speech in question (it was made in Hindi) makes it clear that while Khalid was not saying that Hindus were 'dalals' of the British, or that only Muslims fought for independence:
"Right now, when IPS Abdur Rehman was speaking, he spoke about Gandhi and told us that the weapons that Mahatma Gandhi has given us to fight are Ahimsa and Satyagrah. Civil Disobedience and Non-Cooperation were the methods of Mahatma Gandhi in his fight, and it is through these methods of struggle that we achieved our freedom. That was the time when we were fighting the white colonisers, and when we were fighting against them, the ancestors of the present day rulers of India - the RSS and the Hindu Mahasabha - were acting as agents of the British. Today, they are asking us for the records of our ancestors. It is important to ask them about the record of their ancestors. When the people of India were giving sacrifices - from Jallainwala Bagh massacre to many other incidents when the British shot Indians down, imprisoned so many who dreamt of India's freedom, the ancestors of the present day rulers were acting as agents of the British. We want to tell them that at that time, we carried out civil disobedience against the white colonisers (goro), and now in 2020 we will do civil disobedience against the thieves (choro)."
Unless the RSS and the Hindu Mahasabha are now counted as representative of the entire Hindu community rather than specific organisations, the idea that a Section 153A offence is attracted by Khalid's comments makes little sense.
The comments about the people of India participating in the freedom struggle and making sacrifices, including those massacred at Jallianwala Bagh, make it clear that the speech isn't only valorising the role of Muslims in the freedom struggle, countering the idea floated by the judges that "only one particular community" fought for independence.
The judges note that this comment about certain 'ancestors' being agents of the British is raised multiple times in the speech, with it also cropping up when Khalid talks about the way in which Jamia Millia Islamia University played a role in the freedom struggle.
This was relevant since protests at Jamia had been the touchstone for the anti-CAA movement in Delhi, and had been cracked down on by the Delhi Police, as Khalid elaborated:
"The first university to come up to fight for India's independence was Jamia Millia Islamia. Today, the university is being lathi-charged upon, fired bullets upon, being defamed and being called a den of anti-nationals. We want to tell them, that when your ancestors were acting as agents of the British, the students, teachers and even the VCs were fighting against the British government. They were being imprisoned, and unlike your ancestors they never apologised to the British to be released from jail. Instead, they fought till their end against the British government. The history of Jamia Millia Islamia, our history is a history of sacrifices for the country. If there is any threat to the freedom of our country - that Jamia Millia Islamia and several freedom fighters fought for - or to the values of our country laid by its founding figures and those who drafted its constitution...if there is any threat to our country, then, like our freedom fighters, we would stand up to save our freedom, our democracy and our Constitution. If you want to rain us with lathis or bullets, you can go ahead. If you want to jail us, you can go ahead. We are ready for sacrifices."
Again, it is clear that the 'your ancestors' being referred to are the 'ancestors' of the ruling party in the central government, that is, the RSS and the Hindu Mahasabha.
Criticism of their role in the freedom struggle is not an attack on Hindus as a community which could have certainly amounted to offences under Sections 153A and 153B.
The judges certainly have to be fair and examine if there were attempts to incite hatred between communities in Khalid's speech, as the right to freedom of speech does not protect incitement of violence against a particular community.
However, a bare reading of the transcript of the speech makes it clear that there was no criticism of the Hindu community as a whole, which makes it difficult to understand why the judges would make a prima facie observation that the speech was unacceptable on these grounds.
Since When Is Criticism of the Prime Minister Illegal?
On the second day, the judges continued to look into the speech made by Khalid at Amravati. This time they took exception to reference made by Khalid to the 'jumlas' of the current government.
Speaking about the Shaheen Bagh anti-CAA protests, Khalid termed the offer of talks made by the central government to the protesters "another jumla by this government."
Khalid also criticised the way in which the Prime Minister had gone to the United States a few months ago and appeared to have endorsed Donald Trump for President there and then said that "sab changa si" when it came to the country.
To this, the bench said:
“What he says about the Prime Minister in the speech? Some ‘changa’ word was used and after that … this ‘jumla’ is used for the Prime Minister of India. Is that proper? There has to be a line drawn for criticism also, a ‘lakshman rekha.’Delhi HC bench, as quoted by the Indian Express
There is, however, no such concept of a lakshman rekha in law when it comes to criticism of the Prime Minister of India.
Yes, the criticism cannot include incitement of violence, and yes, the law on defamation may need to be examined, but these are general restrictions on the right to freedom of speech that would apply to any criticism.
The grounds for restriction of freedom of speech are laid out in Article 19(2) of the Constitution – being rude about the Prime Minister of India is not one of them.
Even in the Kedar Nath Singh judgment of the Supreme Court which held that sedition was constitutional, the apex court had said that:
"A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder."
If a citizen wants to term certain actions or utterances of the government or even the Prime Minister, to be 'jumlas,' that is, connoting someone merely 'playing with words,' or connoting someone 'promising much in words, but delivering less in action,' they do have every right to do so, as long as they are not doing so in a manner which is a threat to public order.
In his speech, Umar Khalid specifically rejected a call to violence, saying:
"We will not respond to violence with violence. We will not respond to hate with hate. If they spread hate, we will respond to it by spreading love. If they beat us with lathis, we will hold aloft the tri-colour. If they fire bullets, then we will hold the Constitution and raise our hands. If they jail us, we will go to jail happily singing, 'Saare Jahan se achcha Hindustan hamara'."
Unless Narendra Modi wants to privately file a defamation suit or a case for criminal defamation against Umar Khalid, there is no basis for the court to take objection to Khalid's comments about him, in these circumstances.
When Does the UAPA Bail Embargo Apply?
The charges that the Delhi Police seek to bring against Umar Khalid and the other accused in the case include offences under the dreaded UAPA (Unlawful Activities [Prevention] Act).
This is crucial to the bail hearings for the accused in the case, as under Section 43D(5) of the UAPA, the courts cannot grant bail to a person accused of a terror offence under the UAPA, if "there are reasonable grounds for believing that the accusation against such person is prima facie true."
The sessions court when rejecting Khalid's bail application had specifically said that this embargo applied in his case because it found that the accusations of terror offences by him were prima facie true.
Khalid's lawyer, Trideep Pais, has sought to argue that the allegations against Khalid do not disclose any terror offences, and therefore, Section 43D(5) should not act as a bar on him getting bail.
The Delhi High Court had, when considering the bail applications of three of Khalid's co-accused – Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita – conducted a similar analysis and found that even going by the police's allegations, nothing they had done prima facie amounted to terror offences.
As a result, the three of them had got bail, though the Supreme Court did pass an interim order saying the orders in their favour should not be treated as precedent per se.
What is curious to see is that when looking at Khalid's speech, the bench not only once again took a view that it was "offensive," but then framed the question before it as whether there was a violation of Section 13 of the UAPA.
"Nobody has qualms about free speech but what is the consequence of your employing these expressions, offensive as they evidently are. Did they incite the populous in Delhi to come out to streets? If they did even prima facie, are you guilty of UAPA sec. 13? That is the question before us."Delhi HC bench, as quoted by Live Law
While Section 13 of the UAPA has in fact been invoked in the charge sheet filed by the Delhi Police, this is actually irrelevant when it comes to the question of whether Khalid is to be denied bail.
Section 13 of the UAPA deals with punishment for those who commit an 'unlawful activity' – the definition of which basically covers promotion of secessionism, threats to the integrity of India, and disaffection against India. This falls within Chapter III of the UAPA.
However, the embargo on bail in Section 43D(5) of the UAPA only applies to offences under Chapters IV and VI of the UAPA, that is, commission of terrorist acts, financing of terrorist acts and conspiracy to commit terrorist acts.
Khalid has also been accused of committing terror offences by the Delhi Police, so it is therefore slightly unclear why the Delhi High Court is examining whether a Section 13 offence has been conducted at the stage of bail.
It is perhaps in this context that the judges have raised eyebrows at Khalid's use of the terms 'krantikari' and 'inqilab,' which deal with revolutions. But once again, Khalid makes clear that he is not seeking secession or any overthrow of the Government of India, but of the current ruling dispensation – which does not amount to a Section 13 offence.
At the end of the day, the comments by the judges in the hearings till now do not necessarily mean they will deny bail to Umar Khalid and nor do they breach any rules.
At the same time, given we have the speech of Umar Khalid easily available to view, and the right to freedom of speech still exists in this country, the lines of questioning and comments by them during the hearing do lead to some questions for citizens.
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