Delhi riots conspiracy accused Gulfisha Fatima told the Supreme Court on Tuesday that prolonged incarceration of the accused as undertrial prisoners will make "a caricature of our criminal justice system".

Senior Advocate Abhishek Manu Singhvi, appearing for Fatima, told a Bench of Justices Aravind Kumar and NV Anjaria, that such lengthy incarceration amounts to pre-trial conviction.

"This will make a caricature of our criminal justice system. Nobody needs to be punished like this unless they are convicted. This is pre-trial conviction," Singhvi said.

Pertinently, he also took strong objection to the Delhi High Court order denying bail to the accused, particularly that aspect of the order which had said that a hurried trial would be to the detriment of the accused.

He likened the reasoning given by the High Court to the infamous emergency era verdict of the Supreme Court in the ADM Jabalpur case.

"There is no trial ending in sight, therefore you keep intoning that it’s a serious crime. “Hurried trial would be detrimental to the rights of the appellant and state” - this is misplaced consideration (by the High Court) for the petitioner. I would rather not have this consideration by the High Court. “To care which is almost maternal in nature” - this was a line in ADM Jabalpur. This hurried trial is misplaced consideration for me. I’d rather not have it," Singhvi said.

Another accused Umar Khalid told the Court today that he was not responsible for the delay in trial and the same could be attributed to the police filing repeated supplementary chargesheets.

Background

The Court was hearing the bail applications filed by Umar Khalid, Sharjeel Imam, Gulfisha Fatima, Meeran Haider, Shadab Ahmed and Mohd Saleem Khan in connection with the Delhi riots larger conspiracy case.

The riots occurred in February 2020 following clashes over the then-proposed Citizenship Amendment Act (CAA). As per the Delhi Police, the riots caused the death of 53 persons and injured hundreds.

The present case pertains to allegations that the accused had hatched a larger conspiracy to cause multiple riots. The FIR in this case was registered by a Special Cell of the Delhi Police under various provisions of the Indian Penal Code (IPC) and the UAPA. Most have been in custody since 2020.

On September 2, the Delhi High Court denied the accused bail, prompting Khalid and the others to move the Supreme Court for relief. The top court had issued notice to the police on September 22.

In response to present petitions seeking bail, the Delhi Police has filed a 389-page affidavit detailing why the accused should not be granted bail.

The Police claimed irrefutable documentary as well as technical evidence that pointed to a conspiracy for a "regime-change operation" and plans to incite nationwide riots on communal lines and kill non-Muslims.

During the hearing of the matter on October 31, Umar Khalid, Sharjeel Imam and Gulfisha Fatima told the Court that they did not make any calls for violence and were only exercising their right to peaceful protests against the CAA.

While Khalid told the Court that he was not even in Delhi when the riots took place, Imam said that he never made any calls for violence but only called for peaceful blockades.

Meanwhile, the Delhi Police argued that the six accused cannot seek parity with the three other accused who were granted bail earlier by the Delhi High Court.

On November 18, Solicitor General (SG) Tushar Mehta argued on behalf of the Delhi police that the riots were pre-planned and not spontaneous. He added that speeches made by the accused were made with the intent to divide society on communal lines.

On November 20, Additional Solicitor General (ASG) SV Raju added that the delay in the trial was attributable to the accused. He claimed that the entire protest by the accused persons against the Citizenship Amendment Act (CAA) was aimed at bringing about a change in regime.

Similar arguments were made on November 21 as well, when the police contended that the accused had tried to effect a regime change in India through riots like those which took place recently in Bangladesh and Nepal.

Arguments today

Senior Advocate Abhishek Manu Singhvi, appearing for accused Gulfisha Fatima, highlighted how supplementary chargesheets were being filed continuously to deny bail.

"I have been in jail for just under 6 years. There is a chargesheet filed on 16.9.2020 but as if it’s a ritual of chargesheets. Supplementary chargesheets are filed continuously. Till now we have got 4 supplementary and 1 main. The arrest was in 2020. Even after 2023, the delay is sad, astonishing and unprecedented," Singhvi said.

Singhvi said that "mighty" declarations by courts in various judgments about liberty are pointless if a person has to remain behind bars for 5 to 6 years as undertrial.

"I seek parity. The High Court keeps it pending. Then a new bench takes over. Then the appeals were listed with eight other co-accused. Then it was released from that bench for whatever reasons, let’s not go into that. Then comes the impugned judgement. All the judgements we have, all declarations regarding liberty etc have become naught when we see 5-6 years behind bars. What (harm) can she do if she is released into society," Singhvi asked.

"Is she resident of Delhi? Is she living in the same address?" Justice Kumar asked.

"Yes. In Seelampur. In other countries, the liberty is ensured with anklets and GPS. What public interest are we serving by keeping her in jail? What will she do? Will she try to flee?," Singhvi demanded.

Singhvi also took a strong dig at the Delhi High Court verdict which had claimed that a hurried trial would be to the detriment of the accused.

"There is no trial ending in sight, therefore you keep intoning that it’s a serious crime. “Hurried trial would be detrimental to the rights of the appellant and state” - this is misplaced consideration for the petitioner. I would rather not have this consideration by the High Court. “To care which is almost maternal in nature” - this was a line in ADM Jabalpur. This hurried trial is misplaced consideration for me. I’d rather not have it," Singhvi made it clear.

He said that the prolonged incarceration of Fatima will make a caricature of our criminal justice system.

"This will make a caricature of our criminal justice system. Nobody needs to be punished like this unless they are convicted. This is pre-trial conviction," Singhvi contended.

On the issue of parity, Singhvi pointed out that two other women-accused with more serious allegations, Devangana Kalita and Natasha Narwal, got bail in 2021.

"I am the only lady under incarceration. The other ladies got bail in 2021. My case is a much lesser case. They (Kalita and Narwal) were arrested in 2020, released in 2021 and upheld by Supreme Court in May 2023. they also had very serious allegations apparently and were released in one year. they were part of conspiratorial WhatsApp group DPSG (Delhi protest support group) I was not a part of it. They funded women protestors I did not. I was a local resident of Seelampur, they were not," Singhvi argued.

Singhvi said that there was no evidence against Fatima and that the meeting attended by her was also attended by other two ladies who got bail. Further, the meeting was uploaded on social media and that refutes the argument that it was a secret meeting, Singhvi argued.

"Your lordships had clearly given me an option to make out parity in the other order. They said I attended secret meeting with all other ladies. So this is parity. It’s the same allegation made for Natasha and Devangana. There is no evidence of use of chilli powder, acid etc. there was no recovery. They uploaded it on social media. How can it be a secret meeting? Then in the second secret meeting, Devangana and Natasha were also present and had more prominent roles than me and were granted bail," he submitted.

On the use of Chakka jaam as a means of protest, Singhvi said that it was nothing new.

"And coming to the code word. I don’t understand it. What is the sequitur? Chakka Jaam started much earlier. It started when the BKD was formed. Chaudhary Charan Singh’s party. He innovated the concept of Chakka Jaam in 1970. Now it is putting a 32 year old woman under UAPA. It’s very unfortunate. There is nothing individuated qua me. Chakka jaam is nothing but at the most a legitimate form of protest," Singhvi maintained.

He also claimed that there was no evidence with respect to the allegations made against Fatima.

"Let them show something. They are saying I have provided stones and chilly powder to women in Jahangirpuri. This is very very unfortunate. Let them show something. Then they say I have received funds from Tahir Hussain. The protected witnesses’s statement is recorded 6 months later. He does not say when and how much money was given by Tahir to me. This incident allegedly relates to a prior period. There is no connectivity between me and Tahir Hussain," Singhvi said.

Singhvi also took strong exception to the argument by the Delhi Police that the accused intended to bring about a "regime change" like in Nepal and Bangladesh.

He said that such an argument was never made before the High Court or trial court and it was argued before the Supreme Court as an afterthought to make the case sound serious.

"Allegation of regime change is quite extraordinary. Where have you alleged regime change as the heart of your chargesheet? They say it’s a pan India conspiracy to separate Assam from India? What is the basis? Regime change aspect was never argued in the High Court or trial court. They suddenly say 'regime change' to make it sound more serious. The person who says regime change in the WhatsApp group is not an accused person. He is real or mythical or someone they pulled out of their pocket," Singhvi contended.

Senior Advocate Kapil Sibal, appearing for Umar Khalid, alleged that the prosecution cites something in the chargesheet but then says they will not rely on it when they are asked in court to produce/ supply the same.

"We have in fact filed an application saying release the Jaffrabad video but they are not releasing and saying they are not going to rely upon it. But it is part of the chargesheet," he said.

He said that the only allegation against him is a speech given by him in Maharashtra on February 17.

"I have been inside for 5 years and 3 months. On the 13th September 2020 till date. It is not even the prosecution’s case that I participated in any activity in Delhi. I am involved in the omnibus FIR on the ground of an overall conspiracy. I am alleged to have given a speech in Maharashtra on 17 Feb. that’s all that’s attributed to me. The other acts attributed are that I was made a part of a WhatsApp group. Added by somebody else. There was no message of mine. That’s the sum and substance of the allegations," Sibal said.

If bail is not granted, Khalid will have to be in jail for another three years as undertrial though no single act of violence has been attributed to him, he submitted

"Let’s assume your lordships dismissed it. I will be inside for another 3 years. That will be 8 years without trial. I am an academic. I am an individual. I have not been attributed for any overt act," Sibal contended.

He also countered the claim that the delay in trial was attributable to Khalid.

He said Khalid had sought adjournments while arguing for bail and not during trial.

"The adjournments have been sought while arguments were going on for bail. Not for trial. How can the delay in trial be attributable to me?" Sibal asked.

"His case was the trial would commence only after framing of charges. And while arguments on charge were going on, the delay is attributable to you," the Bench remarked.

"I will counter that. The High Court does not talk of any of this. Their argument on delay was not accepted by the High Court. The High Court order does not say that bail was denied to me because of delay. Delay in trial was occasioned solely on account of the prosecution’s wilful refusal to make a statement that investigation is complete. I was ready to argue on charge and the trial judge says no. Can the delay be attributable to me? It’s not fair for the ASG to do this," Sibal contended.

He said that the accused were ready begin arguments on charge.

"They continued to say that investigation is on. Why did they not begin arguments on charge? I wanted to begin arguments. Please see the proceedings before the trial judge. It says that accused persons want the prosecution to begin arguments on charge. We were ready," he said.

He then highlighted how the police kept filing supplementary chargesheets thus delaying the investigation and trial.

"Unless the investigation is complete, how can arguments on charge begin? They filed 4 supplementary charge sheets. How can they even argue that we are responsible for the delay? They don’t complete investigation, filed 4 supplementary chargesheets, judge was on leave for months. Out of 38 hearings, only 4 adjournments were taken," Sibal said.

He also highlighted Khalid's speech in Maharashtra in which he speaks about non-violent struggle.

“Khalid says, 'we will not answer violence with violence, will will not answer hate with hate'. How is this UAPA?" Sibal said.

"Not just this. They played the other part of the speech also," Justice Kumar responded.

"No this speech was never played. He is saying if you fire bullets we will take it. This is on 17th Feb in Amravati. The riots happened on 23, 24, 25 in Delhi. I was not even in Delhi. I was in Maharashtra. You can’t attribute someone else’s speech to me and say that I am responsible for the riots. I am an academic in an institution. What can we do to overthrow a State? In the entire speech, there is nothing said on communal lines at all. The allegations of these speeches were also against the co accused. Not just me. And those co-accused are on bail," Sibal submitted.

This entitles him to seek bail on facts, the senior counsel said.

"Therefore, I can seek parity on my facts as a matter of law. Nobody can call his speech inflammatory in any sense of the word. I am also entitled to bail due to change of circumstances. I withdrew my earlier bail and claimed parity; hence, change of circumstance. Then 3 years have passed by between 2022 to 2025 so that’s a change of circumstance," it was argued.

Further, he also said that there has been a change in law, he said.

"The High Court says he made an inflammatory speech and it’s good enough. What is the covert or overt act which is attributed to me? None. Except for that speech. And the High Court takes no note of it," Sibal submitted.

"Their contention is that provocative speech instigated people," Justice Kumar remarked.

"I have placed the speech (before the Court). If this is inciting, then many of us are liable to go to jail," Sibal responded.

He went on to cite examples of previous protests and agitations which had led to violence but did not lead to invocation of UAPA by the government.

"This is punitive. I am innocent till I am guilty. This is a punitive act of the state to ensure that I am in jail so that other students of the university should not do this. And chakka jaam. What about the Gujjar agitation in Rajasthan? The Kisaan agitation? The George Fernandes agitation. The railways were not allowed to move. What have these kids done? They were protesting. You can say it is in excess of what they should have done. You can say 144 is imposed. You can’t say it’s a terrorist act! There are other ways to deal with it. Not 5 years in jail," Sibal argued.

Sibal also said that while Khalid was added to certain WhatsApp groups, he never posted anything on those groups and hence cannot be held accountable for the same.

Interestingly, he said that those who sent messages on those groups are either out on bail or have not been roped in as accused.

"The people he says who made the statements are not accused. I went and made a speech at Amravati. Then they say there is an FIR lodged why did you give a speech? Why am I responsible? I am not an accused in that FIR. Under the Maharashtra Act, the punishment for this can be 1 year. And that too qua the organisation. Not me. Somebody added me to a WhatsApp group. All the persons who are sending the messages are either on bail or not an accused. I who is not sending messages is an accused. Only admins could send messages on that group," it was argued.

He also said that Khalid has not been made an accused in any of the FIRs registered for the death during Delhi riots.

"The petitioner’s location throughout is set out here (Sibal shows document). I only go to Shaheen Bagh at 11:31pm. That’s the only time I am in Shaheen Bagh. So how it could be hatched? When I reached there at 11:31pm. They have relied on this to show we all met and conspired. And the document itself shows that we couldn’t have met. There were two deaths, I am not an accused there. I am not even mentioned in those FIRs....I am not an accused in any of the 750 FIRs. The only one in which I was made an accused I was discharged. If they say because of my speeches bombs were thrown and people were killed, I should be an accused in those cases. But I’m not."

Sibal also vehemently refuted the allegation that Khalid had given a speech against the integrity of the country in 2016.

"He said I gave a speech in 2016 saying 'Bharat tere tukde honge'. That was not made by me. It’s not even attributed to me. I have not even made such a statement," he said.

"Who made the statement then," the Bench asked.

"Some other student. They filed another chargesheet in 2016 which said I did not say it. There must be some credibility to this. In that chargesheet of that incident, I am not attributed for that statement. But here, it’s said I made the statement," Sibal alleged.

Senior Advocate Siddhartha Dave, appearing for Sharjeel Imam, said Imam was already in jail for a month when the riots happened.

"On January 28, 2020, I am taken into police custody. I am being prosecuted for speeches I gave snippets of which were played in court. Yes. I have given those speeches. I am arrested for those speeches. If I am arrested for giving those speeches how do I figure in to this FIR? For giving those speeches I am already facing prosecution. There are multiple FIRs and consolidation is pending in this court. This FIR is registered on March 2020. For over a month I have already been in custody. This FIR is registered for conspiracy, for riots that were committed in February 2020. Of course, it rules out my physical presence in the riots. Because I was in custody. If they have taken me to custody in January, they could have said these speeches lead to the riots. But I am not named an accused. My speeches by themselves do not lead to riots. I was already being prosecuted for those speeches," Dave stated.

"Please enlighten us. You created a platform for violence to take place. That is their allegation. January 23 they are saying. You were in custody from 28th," Justice Kumar said.

"They have to show that apart from the speech there is something more I did for conspiracy. For the speech I stayed in custody for 4.5 years. Now the prosecution has to show what did I do more for conspiracy. I must have met people, I must have done something," Dave replied.

"Any act of yours that causes disruption of supplies?" the Bench asked.

"By standing and giving a speech, I cannot disrupt essential supplies. these FIRs do not pertain to these riots. They themselves have said that it failed. At one place they say I am an expert in conspiratorial riots and in one place they say those objectives were never achieved. The documents deal with the DPSG group. I am not a member of that group. They say peroration of violence started in 23.1.2020 and within 5 days I was arrested. I am not a member of this January 23 secret meeting. "Humare pass chaar hafte hai" statement was when the CAA bill was challenged before your lordships and notice was issued. That is what the 4 weeks refer to. On 23rd I am in Bihar. On 28th I am arrested from Bihar. I wasn’t in Delhi," Dave contended on behalf of Imam.

The hearing will continue tomorrow.

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