Guest Post: A 'ubiquitous power disparity' - on the discharge order of Sharjeel Imam, Asif Iqbal Tanha & ors.

(This is a guest post by Gautam Bhatia, cross posted with permission from the ICLP Blog)

On the ICLP blog, we have discussed in some detail various judicial proceedings that have arisen out of the events of late 2019 and early 2020, commonly referred to as the “Delhi riots cases.” Most of these cases have involved bail applications under the Unlawful Activities Prevention Act [“UAPA”]. The judiciary’s conflicting orders in these cases (sometimes handed down by the same judge) have reflected a deeper tension in how our courts engage with the UAPA. 

There is a pro-liberty strain of judgments that subjects the State’s case to a degree of scrutiny, and refuses to fill in the gaps in the chargesheet through inferences and assumptions (see the bail order in Asif Iqbal Tanha); but there is also a pro-executive strain that does the exact opposite (see the bail orders in Safoora Zargar, Umar Khalid (I) and Umar Khalid (II). 

In this context, the discharge order passed by Additional Sessions Judge Arul Varma, on 4th February 2023, in another of the Delhi riots cases, is an important addition to the pro-liberty strand. At the outset, we must note two features which distinguish this case from the bail cases discussed above. First, the case did not involve UAPA offences, and was limited (for the most part) to more benign offences under the Indian Penal Code. And secondly, the case was not about bail, but discharge. 

This very fact, however, is what makes the order significant: when a judge is deciding whether or not to frame charges against an accused, they must decide whether “there are sufficient grounds to proceed,” on the basis of the police chargesheet. Readers will recognise that this is a standard somewhat (although not entirely) similar to the prima facie standard under bail proceedings under the UAPA. Therefore, even if the case itself did not involve UAPA offences, Arul Varma J.’s reasoning is nonetheless significant and instructive in thinking about those cases where the UAPA is applied. 

Indeed, the facts of the case show striking similarities with the UAPA cases that have arisen out of the Delhi riots (some of the protagonists – such as Sharjeel Imam, Safoora Zargar, and Asif Iqbal Tanha – are also arraigned in UAPA cases). The basis of the police case was that a protest organised in the area of Jamia University on 13th December 2019 – with the avowed objective of marching to Parliament to oppose the Citizenship Amendment Bill – turned violent, with stones being thrown at the police, and the deployment of tear gas. According to the chargesheet, the accused were all present at the scene, and were part of a common object and conspiracy to breach prohibitory orders and engage in an unlawful assembly. 

The Court found, however, that at no point had it been alleged or shown that the accused persons had committed any overt act of violence. This, then, raised the question of whether the presence of the accused in an assembly that had allegedly turned violent and broken the law, was sufficient to charge them under the unlawful assembly provision of the IPC. 

Readers will recall that in the bail cases that we have flagged above, the facts were often similar: there was no overt violent act that could be attributed to an accused person, and therefore, the question boiled down to the extent to which the Court was willing to bridge the gap between the legal overt action (a speech, or presence at the scene, or the exchange of WhatsApp messages) and the allegation (conspiracy to commit riots, to engage in an unlawful assembly, etc.)

Arul Varma J, however, gave short shrift to any suggestion that it was the Court’s task to fill in the gaps in the prosecution’s case. He repeatedly noted that the Prosecution had failed to show any overt act – beyond presence – from which it could be legitimately inferred that the accused shared a common object. Following Supreme Court precedent, Arul Varma J noted that the standard was one of actual knowledge: that is, the accused persons should have known that an offence was likely to be committed in the course of the unlawful assembly. In this case, however: 

There is no evidence on record which reflects that the accused herein were even aware that other protestors were armed or not. The accused were protesting against a piece of legislation, and sloganeering against enactment thereof. Positive knowledge that their sloganeering would result in such a maelstrom, is something that cannot be attributed to them sans any cogent proof. (paragraph 33)

While this may sound like basic common sense, it is significant in the present context. Recall, for example, that while denying bail to Safoora Zargar (see above) – despite the fact that no overt act of violence had been attributed to her – the trial court had noted that “when you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.” In other words, the trial court in that case had dispensed with any causal link between the accused’s act (a protest speech) and what the accused was in the dock for (riots). 

As is obvious, this standard expands the bounds of liability to an infinite degree, and stretches the concept of individual responsibility (arguably the backbone of criminal law) to the vanishing point.

Arul Varma J.’s order, on the other hand, showed a keen awareness of this problem. As he noted, relying upon Supreme Court precedent, protests are fluid events, and it is not the case that everyone who joins a (peaceful) protest that subsequently turns violent, has a common object of fomenting violence. 

To draw that link, there must be evidence of at least some overt act that casts light upon the object of the accused; however, if the accused’s presence at a protest that later turned violent was sufficient, then this – as Arul Varma J noted – would entirely collapse the distinction between (legitimate) dissent and (illegitimate) insurrection. 

It would, essentially, make the accused “vicariously liable for the acts of the mob” (paragraph 34). Relying upon the Supreme Court’s judgment in Masalti, Arul Varma J held that in these kinds of cases – involving mass protests – one would need to have more than one, consistent account of exactly what the accused did, in order to attribute a common object to them. This had not happened, and indeed, the Court came down heavily on the police’s attempt to improve its own case by filing a third chargesheet when the arguments on charge were almost over. Consequently, Varma J held: 

It is apparent that the police has arbitrarily chosen to array some people from the crowd as accused, and others from the same crowd, as police witnesses. This cherry picking by the police is detrimental to the precept of fairness. (paragraph 38)

For the same reasons, the Court held that the case of conspiracy – which required a meeting of minds – had also not been met. 

Finally, in his concluding remarks, Arul Varma J framed the issue as one where the State was obligated to draw a clear line between dissent and insurrection, especially in the context of protests like these, where the prosecution sought to blur them. 

Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with. It would be pertinent to underscore that dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained therein. 

It is therefore a right which we are sworn to uphold. As laid down in P Vijayan (supra), this Court is duty bound to lean towards an interpretation which protects the rights of the accused, given the ubiquitous power disparity between them and the State machinery. (paragraph 45)

Apart from everything else, the last line is particularly important, as it constitutes a rare acknowledgement by a court that where two interpretations are possible, the judiciary – as the protector of fundamental rights – should lean towards the accused, given the immense structural power difference between the State and the individual. Indeed, one can see this underlying philosophy present throughout the order – in particular, in the Court’s refusal to fill in the gaps in the Prosecution’s case, and to insist that there be a demonstrable link between the act and the offence, one that requires something more than assumptions, inferences, and allegations of conspiracy to fill. 

One might be present at a protest and one might participate in a protest, but that does not automatically make one vicariously liable for every illegality committed in the course of that protest. To hold otherwise would be to outlaw protests themselves, and to turn Article 19(1)(a) into a dead letter. It is this fundamental insight – regrettably missed by so many courts in so many Delhi riots cases – that Arul Varma J grasped, and articulated it in pellucidly clear terms.