No bail to Umar, Sharjeel, Fatima in CAA case, denied parity with non-Muslim activists

The Delhi High Court has once again denied bail to nine individuals accused in the so-called Delhi riots conspiracy case, despite their prolonged incarceration of more than five years without bail and without the commencement of trial, with the order resting on flimsy observations and concocted evidence that relied heavily on anonymous witness statements and speculative inferences rather than concrete proof.

The decision, delivered on 2 September, has intensified concerns that the judiciary is endorsing prolonged detention on the basis of suspicion while criminalising protest against the Citizenship Amendment Act.

The nine accused, including activists such as Umar Khalid, Sharjeel Imam and Gulfisha Fatima, had taken part in protests during late 2019 and early 2020, but none had publicly instigated violence, forcing the prosecution to advance a theory of conspiracy in which their democratic activities were reinterpreted as covert plans to incite riots.

In the case of Umar Khalid, the court’s reliance on the concept of conspiracy overshadowed the lack of direct instigation, and reasoning was shaped not by strict adherence to evidentiary standards but by judicial assumptions and extrapolations unsupported by fact.

A similar pattern marked the rejection of bail to Gulfisha Fatima, where anonymous witness statements, untested and uncorroborated, formed the basis of accusations, despite the acknowledgement that any verification of these claims would only occur during trial, which is expected to stretch over a decade, given the huge number of witnesses.

Defence arguments pointing to parity with cases where bail had previously been granted, such as to activists Devangana Kalita and Natasha Narwal, were dismissed through distinctions that critics see as contrived, including the claim that Fatima’s formation of a WhatsApp group marked a substantive difference.

The reasoning suggested that legitimate organisational tools for protest were treated as indicators of conspiracy, turning democratic coordination into a ground for extended detention.

The court also displayed what observers described as a double standard, for while it invoked precedent to avoid examining factors favourable to the accused, such as delays in witness testimonies, it was willing to conduct detailed inferences against them, including speculations about possible misuse of organisational positions by figures like Shifa-ur-Rahman.

Further inconsistencies appeared in the court’s treatment of the accused collectively and individually, since while arguments for bail based on parity were brushed aside on grounds of unique roles in the alleged conspiracy, the order simultaneously clubbed individuals into groups such as intellectual masterminds or organisers of protest sites, allowing the court to deny bail en masse without scrutinising the specificities of each case. This enabled the overarching conspiracy narrative to overshadow the requirement for individualised assessment of evidence.

In the case of Sharjeel Imam, additional allegations centred on speeches calling for disruptive forms of protest, such as chakka jams or references to blocking access to the north-east, but these were framed as secessionist or violent despite being within a historical tradition of disruptive protest in India and despite lacking the element of incitement to actual violence required under free speech jurisprudence.

The court nevertheless clubbed him with Khalid, reinforcing the conspiracy framework, despite the fact that Imam had been in prison weeks before the riots began.