New Delhi: On 23 August 2021, during a bail hearing for former Jawaharlal Nehru University (JNU) student Umar Khalid—accused of inciting violence in the Delhi riots of March 2020—his lawyer Trideep Pais told court that the video evidence Delhi police presented was sourced from Republic TV, which sourced it from Bharatiya Janata Party (BJP) spokesperson Amit Malviya, who made no mention of the source.
“Your (prosecution) material is a YouTube video, copied from a tweet...,” Pais said.
This was not the first, and unlikely to be the last, case where police have used unattributed bystander videos to file cases, especially on charges of sedition, punishable by life-term.
Since January 2020 to date, police have filed at least 25 cases of sedition based on unverified footage. That’s 18% of all 138 sedition cases over this period. Article 14 found that police in ten states—Delhi, Assam, Haryana, Tamil Nadu, UP, Punjab, Maharashtra, Karnataka, Jammu and Kashmir, and Haryana have filed such cases banking on bystander video footage. [Source - Article 14 Sedition Database]
In February 2016, Delhi police arrested PhD students of Jawaharlal Nehru University (JNU), Kanhaiya Kumar, Umar Khalid and eight others, on charges of sedition.
The police accused them of raising “anti-India” slogans at a poetry reading on 9 February 2016 to commemorate three years of the controversial hanging of Afzal Guru, sentenced to death for an attack on the Indian Parliament in 2001.
Media and students attended the event, with multiple people recording the session. Members of the RSS (Rashtriya Swayamsevak Sangh), its student body ABVP (Akhil Bharatiya Vidyarthi Parishad) disrupted the meeting, alleging “anti-India” activity.
Soon after, Zee News, a Hindi television channel, aired a video of the event in which it claimed these “anti-India” slogans could be heard.
The Delhi police were present at the JNU event, witnessed the slogans, the clashes and even dispersed the crowd. Yet, on 11 February 2016 they filed an FIR based on a bystander video from Zee News to file charges.
The police did not verify the video nor check if the event or speech “caused incitement”—an essential ingredient for any action to be termed legally seditious, as the Vinod Dua judgement and dismissal of public interest litigation against Farooq Abdullah by the Supreme Court require. “Mere criticism without incitement to violence would not amount to sedition,” Supreme Court Justice Deepak Gupta reiterated in his speech on 7 September 2019.
Since January 2020, at least 25 cases have been filed based on videos on the web recorded by bystanders.
A Delhi government commissioned forensic examination later showed the Zee News video evidence was doctored.
Police accepting bystander videos at face value amounts to abuse of criminal procedure and evidence laws, said Lubhyathi Rangarajan, lawyer and head of the sedition database at Article 14.
Altered Reality Of A Bystander
Traditionally, a bystander was defined as one present at an event who did not participate but who may have an inkling of the incident. Since smartphones became an every person device, bystanders with camera phones became witnesses; their videos qualified as evidence.
Before the smartphone era, a bystander had two options—to intervene or to ignore. Recording an event made him/ her/them a non-confrontational participant.
By 2021, the number of smartphone users in India was estimated at over 760 million. India has 390 million users who access the internet via their mobile phones. Estimates are that by 2023, this figure will be over 500 million.
The bystander’s role expanded as collector of evidence providing a point of view CCTV footage could not since the bystander could record reactions of other bystanders, and could also commentate.
Reliability Of The Bystander Video
Bystander footage on social media often led to media trials where the public played investigator, judge and jury even before the case reached adjudication, without assessment of evidence, without forensic examination.
“There could be mala fides on the bystander’s part, or it may be a chance to settle personal scores. None of this seems to be of concern to the police,” said Rangarajan.
Based on the Zee News video, Delhi Police charged ‘unidentified people’ under sections 124A (sedition) and 120B (criminal conspiracy) of the Indian Penal Code (IPC) at the Vasant Kunj police station in south Delhi, under whose jurisdiction JNU falls. The accused were also charged under sections 323 (punishment for voluntarily causing hurt), 471 (using as genuine a forged document or electronic record),143 (punishment for being a member of an unlawful assembly), 149 (being a member of an unlawful assembly), 147 (punishment for rioting) IPC.
By the time forensic analysis showed the video evidence was doctored, the accused had already spent nine days in police custody. Granted interim bail two weeks later, they were given regular bail only in August 2016 .
Shreya Rastogi, head of the forensics research at Project 39A, National Law University, Delhi, said there was urgent need for probe agencies to check the reliability of bystander videos.
“Investigating agencies and courts understand the possibility of contamination of traditional forensic evidence such as blood, semen, fingerprints. But somehow video evidence is not seen in the same light,” Rastogi told Article 14.
Journalists can easily verify videos. So can the police before submitting video as evidence. “All digital devices have a memory storage beyond the device (cloud) and there are ways to extract or recover even deleted items,” Rastogi said.
Forensics eventually showed the JNU February 2019 videos were doctored, but by then the tampered footage had garnered over a million views and multiple media claimed the slogans were ‘anti-India’.
Yet even before the video was admitted as evidence, Vishwa Deepak, a Zee News producer on the team that aired the video of 9 February, resigned his post. In his exit letter, an English translation of which Scroll.in published in February 2016, Deepak said the video had no “Pakistan zindabad” (Long Live Pakistan) slogans. He said “due to our biases, heard ‘long live Indian courts’ as ‘long live Pakistan’.”
Deepak told The Indian Express that as the audio was unclear, the production team “added a bubble with ‘Pakistan zindabad’” written to guide viewers on what we felt was being chanted.” The police ignored Deepak’s confession-allegation that the video was tampered.
Virulence As Veracity
The concern with bystander videos is speed—they travel quickly in the digital space and set the criminal process in motion, said Rangarajan.
The JNU incident was an early case of unverified bystander video used to level sedition charges, punishable by life-term. It was followed by several cases filed basis video footage off the web, submitted to police or telecast by traditional media:
In May 2021, a former special police officer in Kashmir was arrested on terror charges after a video surfaced of her shouting down soldiers who stormed her house at the start of the holy festival of Ramzan.
In January 2020, the Mysore Bar Association announced no lawyer would appear for journalism student Nalini Balakumar, who was seen in an image, taken by a bystander, holding up a ‘Free Kashmir’ placard at a Mysuru rally led to police filing a suo-moto case of sedition. Denied her right to legal representation over an image, lawyers from Bengaluru finally represented Balakumar who is on bail.
In May 2021 in Uttar Pradesh, two elected village heads were charged with sedition for playing a “pro-Pakistan” song at a victory procession, the arrest based on a bystander video that went viral.
In December 2017, the police in Uttar Pradesh accused nagar panchayat (town municipality) chair of Dhaurahra, Sana Khan, of sedition for allegedly shouting ‘Pakistan zindabad’, the charge based on a bystander video and complaint by the losing BJP candidate’s son.
A Dhaurahara officer told The Indian Express that the police themselves found the video dubious. “In the video, someone not seen is heard... ‘Pakistan zindabad’ and also ‘Pakistan murdabad’. The voice of only one man is from behind the person shooting the video.” The procession was taken out after civic poll results were declared in December 2017.
In all the incidents, none of those accused had any control on what was recorded, how it was circulated or how the action or speech would be perceived or distorted.
“Prosecution extensively uses evidence (bystander video) that was circulated and watched by millions to prove the extent of damage done because of the video,” Rastogi said.
“A media trial affects what happens in court,” Rastogi said, adding that the amplification “speaks for the veracity of the content, making the viral video a self-fulfilling prophecy. This impacts a criminal trial.”
Edited Clips & Anti-CAA Rallies
After the controversial Citizenship Amendment Act, 2019 (CAA) sparked several protests across the country, in February 2021 Article 14 reported how police accused 3,754 individuals for sedition in the early months of 2020 during the anti CAA/NRC movement, where police, participants, media and bystanders all recorded many videos and interviews.
In September 2020, the Delhi police arrested Khalid under the sedition law, anti-terror act, and other related sections of the law, accusing him and others of being “conspirators” in the north-east Delhi communal riots of February 2020.
The first of several FIRs filed in March 2020 was based on a bystander video that the Delhi police claimed an “informer” had submitted.
The FIR alleged the riots in northeast Delhi end February 2020 were a “premeditated conspiracy” by Khalid and others. “Khalid allegedly gave provocative speeches at two different places and appealed to the citizens to... block the roads during the visit of...Trump to spread propaganda…,” said the FIR.
Almost in step, social media were abuzz with an edited video clip, in which Khalid was seen making an appeal to people to “come out on streets”.
The fact was that a 37-second clip of an almost 20-minute speech Khalid made in an anti-CAA rally in Amravati in Maharashtra was extracted, distributed widely and an FIR lodged on its basis.
BJP spokesman Malviya tweeted on 2 March 2020: “Umar Khalid, already facing sedition charges, gave a speech… on 17 Feb 2020…encouraged a largely Muslim audience to come out on streets in huge numbers…Was the violence in Delhi planned weeks in advance by the tukde tukde gang?”
The Hindu right wing and many ruling party politicians often use the phrase tukde tukde (pieces) to vaguely refer to traitors, referring in the main to liberals and minorities, who they accuse of trying to break up India.
On 23 August, Khalid, through his lawyer, called into question the veracity of the video clip of his speech that the prosecution presented as evidence.
“Whether the video clip admitted as evidence represents the complete speech is a question of ‘fact’ that the defence must prove,” said Rastogi, adding that the court would decide on the question of fact basis the prosecution and defence arguments.
“Once that is in place, they should ask the question whether the entirety of the speech falls under the ambit of sedition,” said Rastogi.
In another case, on 20 February 2020, 19-year-old journalism student Amulya Leona’s speech was interrupted and she was arrested on stage at an anti CAA/ NRC rally in Bangalore. Leona shouted “Pakistan zindabad”, which created a furore that drowned out her next slogan: “Hindustan zindabad”.
All India Majlis-e-Ittehadul leader Asaduddin Owaisi, also on the dais, rushed to her and shouted, “What are you saying? You cannot say this.” Her microphone was snatched. Police took her into custody on stage. Multiple people at the rally recorded her ordeal and uploaded it on social media.
Leona was jailed on sedition charges and given bail after 90 days only because police failed to file a charge sheet within the stipulated time.
The video did not show any public excitement or imminent threat from her words, the audience remained passive. The only drama in the video footage, which had a million views, was her arrest.
The differences in the JNU case, Khalid’s arrest and Leona’s were that in the JNU case, charges were filed based on doctored videos. In Khalid’s case charges were filed based on an edited clip. She was arrested onstage before she could even complete her sentence, a slogan that police found sufficient to accuse her of sedition.
No Incitement, No Sedition
Incitement to violence is a key ingredient for the charge of sedition. The Supreme Court in a 1995 landmark judgment Balwant Singh vs State of Punjab stated that, “Casual raising of slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or an attempt to excite hatred or disaffection towards the government as established by law in India”.
In the judgment on Shreya Singhal vs Union of India, the Supreme Court ruled in 2015 that a person could not be tried for sedition unless their speech, however offensive, annoying or inconvenient, had an established connection with any incitement to disrupt public order.
Leona posted the full speech on her Facebook page, providing the context to her “Pakistan zindabad” slogan. The moment she said “Pakistan zindabad”, the audience responded with “Hindustan zindabad”. There was no violence and the opinion of the participants at the anti-CAA rally remained unchanged.
Yet, police took suo-moto cognizance to arrest her, she was refused bail twice over footage that went viral, claiming “she would abscond if released from jail”. Multiple videos repeatedly called her “anti-national”.
None of the cases fall within the ambit of sec 124A (sedition) of IPC, said Rangarajan. “Videos of someone raising slogans or making a public speech, alone, cannot warrant a case of sedition,” she said.
Rangarajan said the “veracity of bystander videos in sedition cases” may be secondary to the question of whether “the case should have been filed in the first place”.
Further, procedural integrity of video as evidence is a gray area. Rastogi said: “The way we understand digital chain of custody has to evolve; videos in individual’s phones and uploaded on social media accounts become integral to cases. Investigators must see how police accessed it or who approached the police with the complaint.”
Measures taken to check reliability before filing a chargesheet must also be placed on record, said Rastogi.
Public Scrutiny Can Do Good
Bystanders capturing and uploading incident-footage on social media for some years now has disrupted state and media dominance of any event’s official explanation.
For instance, it was a bystander video in the George Floyd case, where Floyd died after being handcuffed and pinned to the ground by an officer’s knee, that started the second wave of the Black Lives Matter (BLM) movement.
In India, several videos of police inaction or brutality have nailed police lies or helped seniors act against errant police. When a journalist uploaded a video of police thrashing a young man in south Delhi’s Gautam Nagar, seniors reportedly initiated action against the two errant policemen.
On 5 January 2020, about 100 masked goons rampaged through the university campus, beat hostel students, broke windows and furniture, injuring at least 36 people. Several bystander videos evidenced Delhi Police’s inaction as they stood by while the goons sauntered out of the campus after the rampage.
Who To Blame For Viral Video Clips
The Punjab and Haryana High Court addressed the question of culpability in cases resting on viral video clips. Under the sedition law, who is the culprit—the maker of the speech, or, the individual who recorded it, potentially edited and uploaded it?
The case pertained to a video clip of a conversation/speech of a lawyer Amit Ghai of Punjab that showed the accused using derogatory remarks against Nihang Sikhs in a conference. The chief editor of Punjab Kesari TV, Ajit Singh Buland, posted the video clip on Facebook and YouTube. Based on this video, police charged three men with sedition.
Ghai told the court the video was edited and showed a “one-sided version” and alleged the clip was distributed to “sensationalise the incident”. Since the remarks were not made in a public place, Ghai said Bulund was a “perpetuator of offence” as the speech was a “private affair” protected under Article 19(1)(a) of the Constitution.
The court directed authorities to examine if the original video and the edited clip amounted to hate speech. Justice Arvind Sangwan said “a micro percentage of media may not be that responsible... instead of restraining... hate speech… it airs sensational news”.
The court asked whether “a reporter… on coming to know an offence is committed, is bound to inform police before airing such information”. It also asked the Punjab police to examine “whether… the press reporter himself was an instrument in perpetuation of the crime”.
The court said: “Uploading a video clip on social media or electronic media may amount to promoting disharmony or feeling of hatred etc.”
(Shruti Kaushik is an independent researcher and semantic legal analyst at IndianKanoon. She heads the project on Media Evidence in Sedition at the Sarai Programme at the Centre for Studying of Developing Societies.)