Opinion / Denial of bail to 2020 Delhi Riot case is a travesty of justice

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By Syed Ali Mujtaba, Edited by Adam Rizvi, The India Observer, TIO: Umar Khalid, Sharjeel Imam, Gulfisha Fatima, Meeran Haider, and Shifa Ur Rehman have been in jail for the past five years. They are being accused of instigating communal riots in Delhi in 2020, which took place in the aftermath of the protest against the contentious Citizenship Amendment Act (CAA).

The protest triggered communal violence in North East Delhi between supporters of the CAA and those opposing it. The ensuing violence in February 2020 had left 53 dead, most of them being Muslims.

The trial of the five accused in the Delhi riot case is heard in the bench of Justices Aravind Kumar and N.V. Anjaria and remains inconclusive.

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The prime concern of those following this case is why the accused are denied bail and their ordeal in prison continues for over five years now?

The delay in the trial is attributed to the sloppiness of the cops in framing the charges, the absence of judges, and the absence of the prosecutors, which has led to the accused being kept behind bars for over 1,825 days.

How has the case progressed so far

The accused were arrested in 2020 and charged under the Unlawful Activities (Prevention) Act, the Prevention of Damage to Public Property Act, the Arms Act, and other sections of the Indian Penal Code.

The Delhi police investigating the case have collected about 12000 documents related to the case. It has assembled more than 900 witnesses against the accused. For this, the police have taken four years to complete the investigation. With the evidence collected, the prosecution has to prove that the accused were directly involved in communal riots in Delhi.  The police case centers on the accused’s presence at various protest sites.

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Obviously, this will be contested by the defense team that will cross-examine the witnesses during the interrogation. They will also scrutinize the documentary evidence and challenge it on its merit. A glimpse of it has come up during the trial when the defense has argued that one of the accused was in police custody even before the riots broke out; in such a case, how could he be implicated in the communal riot?

The prosecution is building the case that the accused were making controversial speeches to instigate communal riots and hence are the main culprits.  The defense has argued that organizing or participating in the protests is not a criminal offence, that criminality cannot be attached to mere presence at protest sites or exercising their right to freedom of speech.

How the judiciary works in India

Placing before the bench, a note on the number of times the hearing in the main matter and application was delayed, a defense counsel has said, “On 11 dates the matter could not be taken up due to issues such as shortage of staff and other administrative and logistical exigencies. “On 26 dates, the matter could not be taken up due to heavy workload and paucity of time. On 4 dates of hearing in 2025, no hearing took place due to the lawyers’ strike.”

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“On 55 dates, the presiding judge was on leave for various reasons, including medical grounds and participation in judicial training programmes. On 59 dates, the matter could not be heard due to the unavailability of the special public prosecutor.”

Regarding arguments on charges about the accused, the defense counsel argued that on six dates the matter was adjourned – twice on account of lawyers’ strike and once due to denial of trial on Video Camera and twice on account of conflict with another hearing, and once on account of the presiding officer being on leave.

Denial of Bail

The defense counsel told the court that the accused has been languishing in jail for five years due to judicial and prosecutorial unavailability and is denied bail for none of their fault. They argued that the seriousness of an offence cannot be a ground to deny bail, and granting bail is a rule, as other similarly-placed accused had been granted bail.

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The counsels told the court that the bail application itself was kept pending for more than three years by the High Court. The counsel told the court that the police kept on filing supplementary charge sheets every year, and it was only in September 2024 that the trial court passed an order that the probe was completed. So as such, there was no delay on the part of the accused, at least till Sept 2024,” the defense counsel argued.

Conclusion

So far, the hearing of the 2020 Delhi riot case has remained inconclusive. There are more than 900 witnesses whose statements have to be recorded. So it can be concluded that the trial in this case cannot be completed in the near future.  In such a case, can the accused be denied bail even after spending more than five years in jail? Won’t this be a travesty of justice?

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It is common knowledge that an accused is innocent till proven guilty by the court. According to the United Nations’ Universal Declaration of Human Rights of 1948, the accused cannot be denied bail, as that would be a denial of their basic rights of human freedom.

The Indian Constitution has incorporated several articles from the Universal Declaration of Human Rights. The crux of Articles 21 and 25 is human being is born free and no State or judiciary can keep them in chains.

The detention of the five accused in the Delhi riot case and their denial of bail is a testament to the fact that justice is being delayed for the sake of denying justice. Denying bail to the five young citizens is a denial of their right to be human beings, and to snuff their youthful lives is simply inhumanity.

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The denial of bail to the accused in the Delhi riot case is setting an example of how the judiciary is being used by the government in power to persecute Indian Muslims.  A report published in 2021 says that among all detunes in Indian prisons, over 30% are Muslims, even though their share in the population is only 14.2%.

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