SC has relied on a loophole-riddled chargesheet to deny bail to Umar Khalid and Sharjeel Imam, and expand definition of terror

In its judicial scrutiny of roles ascribed to each accused, the judgment supports the central role attributed to Umar and Sharjeel, but does not engage with the question: What did they mastermind?

I have wondered why the chargesheet in the “Delhi riots larger conspiracy case” could not be assailed under Article 14 for being discriminatory. It feels contrived in its foregrounding of Muslim organisers/protesters as the central problem, and for its studied silence on the counter-mobilisations and the actual circumstances of each act of violence. Despite the noise, there is precious little investigation connecting each individual death, including that of Ankit Sharma, the IB staff member, to the protests.

The chargesheet encloses about 750 FIRs filed across police stations in Delhi as annexures, but does not correlate the information in these FIRs to its large conspiracy case. The individual FIRs tell a different story than the conspiracy case: A majority of protest sites remained peaceful; some protests were attacked by external mobs, and there were group clashes at certain others. The conspiracy chargesheet does not weave them together to answer a) how the accused in each individual FIR are linked to the anti-CAA protests; b) whether other accused have taken the defence that they were so provoked by the road blockades that they attacked the protesters; c) in those acts of rioting where groups of anti-CAA protesters clashed with those supporting the CAA, who mobilised the latter group into a critical mass? The chargesheet does not work its way bottom-up, taking into account each act of violence, the accused therein, and making a causal link with the alleged conspiracy. It is top-down: There was a conspiracy. And violence ensued.

The chargesheet agrees that there have been calls for complete bandhs before, but what differentiated this protest was the “dark intent” behind it. It was not actually concerned with the CAA, but was only using it as a ruse to overthrow the government, as part of an Islamic conspiracy. The voluminous chargesheet provides evidence to suggest quite a public planning of protests, but nothing to suggest that the anti-CAA movement was only a ploy to dislodge the government. In fact, the evidence is entirely focused on the impassioned opposition to the CAA by the protesters in order to claim equal citizenship of India. The chargesheet relies on social and political prejudices to insinuate that Muslim political mobilisation always has a deeper, darker intent than the stated grievance. I considered the efficacy of a petition challenging the generally arbitrary invocation of the UAPA and praying for a comprehensive audit of cases categorised as “terror acts”.

In the judgment in the “bail matter”, the court preferred to suo motu not see any arbitrariness, let alone malice, in the chargesheet. While granting bail to five accused but not to Umar Khalid and Sharjeel Imam, the judgment promised judicial scrutiny on three issues. On the question of delay, it holds that since UAPA offences involve security concerns, courts are not expected to mechanically grant bail, only because prolonged periods of incarceration without trial have been suffered by the accused. Prolonged jail may only invite “judicial interest” into the circumstances of the case. Counterintuitively, it frees the prosecuting agencies from any sense of urgency in efficiently concluding trials involving state security. The judgment presents the bureaucratic state as fumbling with “complex proceedings”, and nods in sympathy. It finds that “the nature of the prosecution…and the breadth of material, rendered the proceedings time-consuming”. At the same time, the filing of “successive applications by the accused, which needed procedural orders” is seen as having contributed to the delay. It would seem that invocation of procedural safeguards by the defence has to be made on “accused’s own time”, and to be discounted from the overall period of delay.

The judgment expands the meaning of “terror offences” to literally include all manner of action. It says that the means employed are not restricted to the use of explosives, firearms or other weapons, but may include “any means”. Second, the act may not aim at violent destruction, but may have other effects, such as disruption of essential services, etc. This is an odd formulation in support of the prosecution’s case, because the chargesheet does not allege any wholesale disruption of supplies or essential services. The expanded reading may include any protest within its ambit, but it is not clear which actions would not be construed as acts of terror. The Supreme Court has rich precedent on demarcating simple “breaches of law and order” from more far-reaching “disruptions of public order”, which are in turn distinct from “national upheavals” like terror acts, or acts endangering the security of the state. In the wisdom of the courts, previously, even disruptive civic action was covered under the general head of “public disorder” in its most comprehensive sense and attracted penal offences like “unlawful assembly”, “rioting”, etc. Now, how do we prima facie distinguish civic actions from “terror acts”? In the absence of any material difference between two incidents of disruption, prosecution may whimsically rely on “conspiratorial intent” to selectively categorise one as “terrorist action”.