NEW DELHI — “Start from scratch,” said the masked Additional Sessions Judge Dharmender Rana to a sparsely attended courtroom as the prosecution sought to defend their claim that Safoora Zargar, a 27 year-old sociology student, now five months pregnant and incarcerated since 10 April, conspired to instigate the communal riots that shook the national capital in February this year.
At least 53 people died in the riots, with constables of the Delhi Police responsible for some of the deaths and violence. Members of the ruling Bharatiya Janata Party (BJP) are on record making provocative public speeches shortly before and during the riots. Nonetheless, the Delhi Police — which reports to the Union Home Ministry controlled by the BJP — and public prosecutor Irfan Ahmed, appointed by the central government, insist the riots were instigated by students like Zargar.
The Delhi Police has been so eager to imprison Zargar that they first arrested her on April 10 amidst a nation-wide lockdown to stem the transmission of the deadly coronavirus.
When Zargar was granted bail three days later by Metropolitan Magistrate Deepakshi Rana, the police rearrested her the very same day on the basis of a different First Information Report (FIR) filed by the police’s so-called “special cell.” Zargar has been booked under at least 20 sections of the Indian Penal Code, including for murder and sedition, two sections of the Arms Act, and four sections of the Unlawful Activities Prevention Act (UAPA), India’s draconian anti-terror law, and was presented before a different bench.
At least six other students from Jamia Millia Islamia University and Jawaharlal Nehru University have been arrested in connection with the Delhi Riots. The police and prosecution’s actions suggest no let-up in the Narendra Modi’s government’s determination to crackdown against those opposed to the BJP’s Hindu majoritarian agenda.
On 4 June, in the latest bail hearing, Zargar’s lawyer Trideep Pais said that she was in her 21st week of pregnancy and suffering from health complications that could increase her chances of miscarriage. Incarceration in any of Delhi’s jails where COVID cases have been reported, Pais noted, could endanger Zargar and her baby.
“It’s not her life alone that we are concerned with today,” he said.
Over two and a half hours, Pais sought to demonstrate that the prosecution was “misleading the court.”
“They are trying to weave a false narrative and making people like Safoora pawns,” Pais said.
The Delhi Police, Pais said, was using an open-ended “all encompassing” investigation to target students and political activists for exercising their constitutional right to protest in opposing the Narendra Modi government’s controversial new citizenship law, the Citizens Amendment Act or CAA, that critics say discriminates against Muslims.
Irfan Ahmed, the prosecutor, painted a picture in which Zargar and other students of Jamia Millia Islamia University planned most of the protests against the CAA, and eventually conspired to instigate the February riots in Delhi.
The police’s conduct in foisting additional cases against Zargar after she had already got bail was explained away by Ahmed on the grounds that “this was a very large conspiracy” and the FIRs had been registered as per the numerous instances of violence that occurred.
Ahmed, the government prosecutor, argued the Jamia Coordination Committee had organised most of the anti-CAA protests, and then decided to escalate their agitation, resulting in the riots.
The government alleged that Zargar was “managing” Chand Bagh , a hotspot in the riots, where a meeting to plan the riots was held on the intervening night of 16-17 February.
Zargar was not physically present at the meeting, but she was still “managing” it, the government said. Then, on 23 February, the government alleged that she gave a provocative speech at Chand Bagh , which led to violence on the afternoon of 24 February — a day later.
Pais said tracking Zargar’s movements on 23 February through her phone signal and WhatsApp message revealed that she had only passed by Chand Bagh that day and gone to Khureji instead, another hotspot ten kilometers away.
Pais said that Zargar did give a speech here on 23 February, but it was not the least bit inflammatory. He pointed out that she was not booked under the FIR that was registered for the violence in Khureji, three days after her speech.
The defense lawyer described the government’s “prima facie” as “lopsided.”
Citing famous Indian and American cases of freedom of speech and expression, including Shreya Singh versus Union of India (2015), Priya Parameswaran Pillai versus Union of India (2015), and Brandenburg versus Ohio (1969), Pais said that for any speech to be linked to an instance of violence, what was said needs to pass the “proximity test,” and it should be like a “spark to a powder keg,” resulting in “imminent illegal action.”
So even if one is to assume that Zargar did speak in Chand Bagh , there was no violence reported till close to 24 hours after the hypothetical speech.
Like in the Khureji case, Pais said that Zargar was also not booked under the FIR registered for the violence that erupted here.
Pais said a reading of WhatsApp messages suggested that Zargar’s movements that day were spontaneous as she traveled in a cab, found metros closed, and even communicated that it was impossible to get to Chand Bagh because of a traffic jam.
At one point in the build up of the tensions, the admins of the WhatsApp group even removed a member who had posted a distasteful comment, and changed the settings so that only admins could post messages.
The defense lawyer said this action showed that JCC was a “responsible group,” and not looking to plunge the national capital into religious violence.
Pais also said there had been no recovery, and a Delhi Police raid of the JCC office had only turned up blankets and relief materials. The evidence on record, Pais said, offered no basis for the imposition of the draconian Unlawful Activities Prevention Act (UAPA).
Yet in his order, which took nearly an hour to dictate, Judge Rana appeared unmoved.
“From the material available on records, one cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and such a magnitude that it would lead to disorderliness and disturbance of law and order at an unprecedented scale. Therefore I cannot but disagree with the learned defense counsel that the provisions of UAPA could not have been validly invoked in the case at hand,” Judge Rana said.
Zargar’s “mere absence” from the scenes of violence on 24 February did not help Zargar if there is prima facie evidence of the existence of conspiracy, Rana said, adding that as per Indian law, “the evidence of acts and statements made by any one of the conspirators in furtherance of the common object is admissible against all.”
Rana said there at the very least prima facie evidence of there being a conspiracy to organise a roadblock (chakkajam).
“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,” said Rana.