New Delhi: On 19 January, Umar Khalid, a political activist lodged in Tihar Jail, told additional sessions judge Amitabh Rawat that he had been given access to the chargesheet of the Delhi riots conspiracy case only three days earlier, two months after he was charged in November.
While Khalid, a PhD from Jawaharlal Nehru University (JNU), Sharjeel Imam, a PhD student at JNU, and Faizan Khan, a mobile phone salesman, were charged in November, 15 of the 18 accused in the Delhi riots conspiracy case were charged in September.
Khalid said he only had three hours every day to read through thousands of pages that would determine the course of his life.
“But some days, it is one hour. Some days, it is two hours. It doesn’t just differ from jail to jail, but day to day, depending on which officer is in change and his mood,” Khalid who was charged with over 30 offences, including sedition, murder, criminal conspiracy and terrorism on 22 November, told judge Rawat. “If he says you leave in an hour, then I have to leave or I can try and negotiate for a bit more time.”
Khalid, a PhD from Jawaharlal Nehru University (JNU), was talking about the soft copy of the two chargesheets in connection with the first information report (FIR) 59, also called the Delhi riots conspiracy case,
the first of which is 18,000 pages and the second (the supplementary) is 197.
The conspiracy case seeks to establish who was responsible for the communal riots that left 53 people dead following the protests against the Citizenship Amendment Act, 2019 (CAA), 40 of them Muslim.
Sixteen of the 18 charged are Muslim. Months have passed but the accused, who are fighting for their life and liberty, are yet to receive proper access to the voluminous chargesheets in the Delhi riots conspiracy case, key to effectively countering graves charges of terrorism and murder that the Delhi Police has levelled against them.
In interviews with Article 14, lawyers, most of whom spoke on condition of anonymity as the case is sub judice, described how hard it has been for them to communicate with their clients in what is perhaps one of the most complicated conspiracy and terror trials in India’s legal history.
Not only have there been no physical meetings between lawyers and their clients since in-person prison visits were stopped following the coronavirus outbreak, the Delhi Police resist all they can in giving hard copies of the chargesheet for FIR 59 to the accused.
The Delhi Police supplied the softcopy of the chargesheets in pen drives on 21 September and 2 December respectively. It has taken months for the officials in Delhi’s Tihar and Mandoli jails to make arrangements for these chargesheets to be downloaded on the computers available in jail.
The rules for access are arbitrary. While some of the accused have three hours every day to read the chargesheet, others have as little as one.
Why Hard Copies Are Important
Section 207 of the Code of Criminal Procedure (CrPC), 1973, says the state has to furnish the accused with the FIR, the chargesheet, statements made by witnesses to the police and the judicial magistrate, and any other documents relevant to the case.
The Delhi Police on 3 November moved the Delhi High Court against providing a hardcopy of the chargesheet, arguing that the state is not obligated to provide hard copies. The police argued that it had discharged its duty by handing over the soft copies on pen drives, and the state did not have the money to print thousands of pages.
Some lawyers have done screen shares of the chargesheets during virtual (online) meetings with their clients, and tried summarising sections most relevant to their clients. But given the bulk of the statements and the large number of screenshots of WhatsApp messages quoted, there was only so much that lawyers could show and communicate over the internet.
“There is no way to explain the contents in 30-minute virtual meetings,” said one lawyer. “The nature of the chargesheet makes it critical to read in a physical form.”
A second lawyer said the delay was working against the accused. “These guys are inside jail. If they were out on bail it would have been a different situation. It is proving very difficult to get bail. So this delay is working quite well for the state.”
In the first bail application after the the first chargesheet for FIR 59
was filed by the Delhi Police in September, judge Rawat on 28 January rejected bail for Natasha Narwal, a postgraduate student at JNU, saying that there was a prima facie case under the Unlawful Activities Prevention Act, 1967, a law primarily used against terrorist activities.
Of the 18 charged in the conspiracy case, two have been granted bail by the Delhi High Court: Safoora Zargar, a postgraduate student at Jamia Millia Islamia University (JMI), who was pregnant when she was incarcerated last year; and Faizan Khan, a salesman, whose only crime appears to have been giving a mobile phone SIM card on a false identity to a JMI student (later an accused) months before the riots.
The argument that soft copies can replace hard copies is bad in law, and can limit the access an accused person has to legal documents, lawyers said.
The accused in FIR 59, which include university students, activists, two former councillors, a mobile phone salesman, and a tailor,are from different socio-economic backgrounds, with varying degrees of comfort with virtual meetings and reading a soft copy on a computer.
Salim Malik, a lawyer in FIR 59, who is representing a man named Salim Malik, said his client is a tailor who cannot read the chargesheet in Hindi or English. “My client has faith that I’m doing the right thing,” he said.
Lawyers, too, are from diverse socio-economic backgrounds, with varying degrees of comfort when it comes to virtual meetings and soft copies. Many who are not comfortable with virtual hearings and PDF documents have no choice but to adopt, especially after physical courtroom hearings were stopped because of the pandemic.
The Difficulty With Virtual Meetings And PDFs
In an interview last year, Abdul Gaffar, a criminal lawyer fighting at least 50 cases related to the Delhi riots, said that many lawyers had passed their cases to him because virtual meetings and PDF documents were unfamiliar to them.
Even those comfortable with using laptops and computers prefer a hard copy of the chargesheet while preparing a defense with their client.
“I find it easier to work with hard copies,” said the second lawyer. “When you actually break it down, while preparing for a case such as this one, it is actually really difficult to get instructions from clients, compare statements, read the Whatsapp chats, to digest information, without having a hard copy.”
By saying that they have discharged their duty by providing soft copies to the lawyers, the Delhi Police are implying that it is up to lawyers to print out thousands of pages for their clients.
There are some lawyers who cannot afford to.
In addition to the cost, lawyers opposed the Delhi Police on legal principle. The onus of printing and delivering a hard copy rests with the state, they said.
“The purpose of 207 is to make the accused aware of the case against them. While you put them in jail and deny bail, the accused need to know what all this is about. This is such an important concept,” said the second lawyer. “The country is seeing one of the biggest UAPA and conspiracy cases. The question is whether the prosecution wants to limit the accused? One would hope that the courts would favour the accused in a case like this.”
Meanwhile, judge Rawat has not yet passed an order in response to a demand made by the accused in FIR 59, fixing how many hours a day they could access the soft copy of the chargesheet on jail computers.
The next hearing in his court is scheduled for 16 February.
“I don’t understand why it should be limited to any number of hours. They should be able to access it the whole day. They are undertrials and not expected to do any other work in jail,” said the first lawyer.
If they spend all their time preparing for their trial, I don’t see the problem with that.”
‘Police Have No Fear Of The Law’
At a hearing on 21 January, India’s additional solicitor general (ASG) SV Raju told the Delhi High Court Justice Suresh Kait that he needed two more weeks to respond in the Delhi Police petition against providing hard copies.
The next hearing on 18 February would be over three months after the Delhi Police first filed a petition contending that they did not have to provide hard copies to the accused, since the law requiring them to do so dated back to 1898 and the word copy “meant just like another,” not “photocopy”, because photocopy machines were only invented in 1938 and sold in 1959.
The Delhi Police said they had “limited resources” and could afford to make photocopies of the chargesheet.
“It is going to be a long trial,” the second lawyer said. “The court has hard copies, so obviously you expect the lawyer to have hardcopies too. Then there is a witness in a box and you present something to him. To imagine that cross-examination is going to happen on two laptops is ridiculous.”
It is unclear why the Delhi Police is arguing against giving hard copies because lawyers say that during oral arguments, ASG Raju said they could photocopy the chargesheet at the rate of 50 paise per page at a photocopy shop in Patiala district court and they would be reimbursed.
Lawyers, however, did not agree to this arrangement, arguing that it was the responsibility of the state to provide the hard copy of the chargesheet.
Mehmood Pracha, the lawyer who had countered the ASG, said, “Ultimately, I tried showing that they are lying through their teeth. They have no fear of law. They have no fear of judges. Their main point was that they don’t have the money, but now they are saying that we will pay money.”
Pracha said that in addition to it being a mandatory requirement of the law, there is a tactical reason for ensuring that hard copies come from the Delhi Police via the court.
“The photocopy is their responsibility. We cannot take responsibility because then they would say that we have not made correct copies. What if they give me an xyz chargesheet, I cannot say you supplied me with a bad copy. They will say that you have done the wrong thing,” he said.
On the issue of the volume of the first chargesheet — 18,000 pages — a fourth lawyer said, “There are so many white collar cases, the data and the pages run into a far more number of pages. In terms of Article 14 (equality before law) and Article 21 (life and liberty), the accused have constitutional rights. There is no reason for them to be meted out differential treatment. They should have access to physical copies free of cost.”
What about the practical problem of keeping bundles of paper in a small jail cell? That too was for the jail authorities to make the proper arrangements, the lawyer said.
‘We’ve Never Had A Pushback Before’
Justice Suresh Kait of the Delhi High Court stayed the legal proceedings in FIR 59 until the hard copy petition was resolved.
While judge Rawat hears bail pleas and holds judicial remand hearings every 14 days, in which he listens to a wide range of problems the accused are facing in jail, the merits of the case are not to be discussed.
If the legal proceedings were not on hold, lawyers would have been at the stage where they scrutinise the physical documents provided by the police. They would have looked for documents that are dim, illegible, cut, blank, missing, identify documents without seizure memos, among other problems, and file an application for missing documents or corresponding material, such as CCTV footage that might be useful for the defense.
Some of the accused have been incarcerated in connection with FIR 59 since March 2020. The invoking of UAPA in April resulted in the indefinite detention of students and activists.
On why it was important to fight for the hard copy of the chargesheet even as it caused further delay in the legal proceedings, a fifth lawyer said it was an “important” and “legal” issue.
“We’ve never had a pushback on giving a physical copy of a chargesheet,” said the lawyer. “It has always been done, and there is no reason that it should not be done.”
(Betwa Sharma is an independent journalist who covers politics and civil liberties. She was the politics editor at HuffPost India.)