Supreme Court found Umar Khalid was part of a design involving systemic disruption of civic life ::: Denial of bail to Umar Khalid and Sharjeel Imam means Court "expanded definition" of ‘terrorist act’

When going gets tough ... the 'law' may also catch you.

More than 50 people died in the 2020 religious clashes in Delhi

This has apparently happened with Umar Khalid in the now infamous Delhi riots case.

Sources say Khalid relied heavily on his Amravati speech to argue that he consistently advocated non-violence, the Supreme Court on Jan 5 held that speech could not be viewed in isolation. 

In conspiracy cases, outward disavowal of violence does not negate allegations of preparatory and coordinating acts when assessed cumulatively, the Court said.

snap credit - Bar and Bench website 

The Supreme Court reiterated that:

Bail under the UAPA is exceptional

Courts are not to conduct a mini-trial at the bail stage

The test is whether the accusations are prima facie true

Issues of credibility, interpretation and guilt are matters for trial.

Applying this standard, the Court concluded that Umar Khalid and Sharjeel Imam occupy a distinct position in the prosecution narrative, which justifies continued pre-trial custody at this stage.

****

Perhaps in denying bail to Umar Khalid and Sharjeel Imam, the Supreme Court also expanded definition of ‘terrorist act’.  

The Supreme Court held that there were reasonable grounds to believe that the allegations against Umar Khalid were prima facie true, thereby attracting the embargo on bail under Section 43D(5) of the UAPA.

The reasons relied upon by the Court included:

• Role as organiser and coordinator : The prosecution case depicted Khalid as a key organiser who allegedly conceptualised, guided and coordinated the strategy of sustained chakka jams, distinguishing them from ordinary dharnas. He was described as a person who supplied the “method” and “timing” of protests.

• Participation in key meetings :  The chargesheets referred to Umar Khalid’s alleged presence at multiple meetings from December 2019 onwards, including at Jangpura, Jamia, Shaheen Bagh, the Indian Social Institute and the Gandhi Peace Foundation. These meetings were said to have resulted in decisions to expand protest sites and escalate agitation.

• Directions attributed through witness statements : Protected witness statements relied upon by the prosecution attributed to Khalid the act of explaining the distinction between dharna and chakka jam, issuing directions to commence 24×7 blockades and planning expansion to other areas “at the right time”. At the bail stage, the Court held that it could not test the credibility of these statements.

• Use of coordination structures : The Delhi police/prosecution alleged that Khalid was associated with and influenced coordination groups such as the Jamia Coordination Committee and the Delhi Protest Support Group, which were allegedly used to transmit decisions and ensure uniform execution across protest sites.

Delhi police says the violence in 2020 was "pre-planned" as a part of a larger conspiracy to "threaten India's unity".

Cops registered 758 cases in connection with the investigation and arrested more than 2,000 people. This included 18 student leaders and activists who were arrested in a case that came to be known as the "main conspiracy case". 

Notably; the accused have all been charged under terror charges in the stringent Unlawful Activities Prevention Act, Arms Act and various provisions under the penal law

“The record discloses that all the accused do not stand on equal footing as regards culpability. 

The allegations against the principal accused indicate a central and directive role in conceptualising planning and coordinating the alleged terrorist act, whereas the material against certain co-accused reflects conduct of a subsidiary or a facilitative nature,” a Bench headed by Justice Aravind Kumar said.

Essentially, the ruling created a hierarchy of offenders, even when all the accused are booked under similar charges and examined their roles individually. 

The accused have all been charged under terror charges in the stringent Unlawful Activities (Prevention) Act (UAPA), Arms Act and various provisions under the penal law.

The Supreme Court order focuses on two primary issues: -- 

What constitutes a “terrorist act” and 

** Who determines that, and whether prolonged incarceration before a trial can begin can be justified under anti-terror law. 

Apart from the immediate consequences for the accused, the bail order also accepts an expansive definition of a “terrorist act.”

^^ 

Section 15 of the UAPA defines a terrorist act as an act done -- “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 and the other accused allegedly conspired to organise would also fall under the definition of “any other means.” 

Senior Advocate Kapil Sibal, who appeared for Khalid, argued that advocating for chakka jams or road blockades is a legitimate form of protest in a democracy. 

The thrust of the arguments by the accused is that since the provision talks about violent means, “any other means” should be read only as other violent means.

The Supreme Court, while deciding the bail application, examined this definition and agreed with the prosecution’s interpretation.

“The means by which such acts may be committed or not confined to the use of bombs, explosives, firearms, or other conventional weapons alone. Parliament has consciously employed the expression court by “any other means of whatever nature” which expression cannot be rendered otiose. 

The statutory emphasis is thus not solely on the instrumentality employed but the design, intent, and effect of the act,” the court said.

Take Aways :

The Court rejected the argument that absence of recoveries or overt acts of violence was decisive. 

It held that in a conspiracy alleging distributed roles, organisers may not carry weapons or execute terminal acts and that insistence on recoveries would immunise planners at the bail stage. 

The apex Court found that Khalid was part of a design involving systemic disruption of civic life, thereby attracting the statutory embargo on bail.

Sharjeel Imam had Central and ideological role

The prosecution portrayed Imam as one of the principal ideologues who conceptualised and propagated the strategy of “chakka jam” as distinct from peaceful protest. 

The Court found that he was not projected as a peripheral participant, but as a planner operating at the inception of the alleged conspiracy. 

The prosecution relied on pamphlets allegedly drafted and circulated by Imam, as well as multiple speeches delivered by him in December 2019 and January 2020. 

These speeches, according to the prosecution, advocated choking Delhi through road blockades, disrupting essential supplies and creating conditions that would escalate into violence. 

The Court said that it could not, at the bail stage, discard the prosecution’s interpretation of these materials.

Several neighbourhoods in the city's northeastern parts were set on fire in the violence -- BBC

snap - BBC

The Delhi police had told court earlier that all investigations were carried out in a "credible, fair and impartial" way.  

*** Both Khalid and Imam argued that their long incarceration violates Article 21.

The Supreme Court acknowledged the seriousness of prolonged detention, but held that where Parliament has imposed a statutory bar on bail, constitutional courts cannot undertake a general balancing exercise unless the prosecution case fails the prima facie test.

It held that the present case did not meet that threshold.

  ends