New Delhi: Close to two years after the Delhi police arrested him on 26 April 2020, Shifa-ur-Rehman, president of the Alumni Association Jamia Millia Islamia (AAJMI), is one of the longest incarcerated accused of the Delhi riots conspiracy case, and someone who has not quite caught the attention of the press and the public in the same way that other social and political activists in the case have.
Rehman, 45, one of the 18 people accused of instigating communal violence in the national capital in February 2020, is named in the chargesheet for first information report (FIR) 59/2020 of the Delhi crime branch, invoking over 30 crimes including murder, sedition, and committing a terrorist act.
In the months following the riots, the Delhi police arrested some of those protesting against the Citizenship Amendment Act, 2019 (CAA), accusing them of using the two-month long anti-CAA movement as a front for planning the communal riots that left 53 people dead, two-thirds of them Muslim. Of the 18 people accused of planning the worst communal violence in Delhi since the killing of Sikhs in 1984, 16 are Muslim.
Over the past two years, the police investigation into the conspiracy behind the Delhi riots has come to be regarded as an exercise in delegitimizing the anti-CAA protests and silencing critics of Prime Minister Narendra Modi’s government especially Umar Khalid, a political activist and a PhD from Jawaharlal Nehru University in Delhi.
In bail orders for three student activists Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, and a former mobile phones salesman, Faizan Khan, the Delhi High Court judges have castigated the Delhi police investigation, finding no prima facie case of terrorism against them.
The CAA is a law that allows for undocumented residents who have fled religious persecution to apply for Indian citizenship unless they are Muslim, India’s largest minority, in effect making religion the basis of granting Indian citizenship. The bill was tabled by the Modi government and passed by Parliament in November 2019. When read with the National Register of Citizens (NRC), it allows for undocumented Muslims in India to be treated differently from people of other faiths who can’t prove their citizenship, and renders them vulnerable to losing their citizenship.
FIR 59/2020, registered on 6 March 2020, invokes four sections of the Unlawful Activities Prevention Act, 1967, India’s counterrorism law that makes it difficult to get bail, 25 sections, including murder, conspiracy, sedition, of the Indian Penal Code, 1860, two sections of the Prevention of Damage of Public Property Act, 1984, and two sections of the Arms Act, 1959. If convicted for murder (section 302 IPC) and committing a terrorist act (section 16 UAPA), the accused could face a death sentence or life imprisonment.
Speaking with Article 14 from Tihar Jail in February 2022, in a phone interview, Rehman said, “The police action against students and activists who had participated in the peaceful demonstrations against the controversial citizenship law has raised serious questions on the democratic credentials of this country.”
“This India was not imagined by me because the India in which I was born promoted love and affection among all sections of the society,” he said.
Describing India as an “epicentre of Islamophobia in Asia,” Rehman asked why leaders of the ruling Bharatiya Janata Party like Kapil Mishra, parliamentarian Parvesh Verma, and union minister Anurag Thakur, who issued threats and indulged in hate speech, were never arrested by the Delhi police, who report to the home ministry, currently run by Amit Shah.
Rehman recalled Manish Sirohi, an arms dealer who had five pistols and 20 cartridges when he was arrested on 26 February, but he was booked only under the Arms Act and granted bail on 6 May after a Delhi court cited the risk of him contracting Covid-19.
“Why aren’t they in jail like me and scores of others? Didn’t their statements increase the vulnerabilities of Muslims? Or do you just have to be Muslim to be in jail? Manish Sirohi was taken into custody, but released soon after, suggesting that stringent laws are applied selectively and are meant only for Muslims,” he said.
Rehman, who hails from Sathla village in Meerut, Uttar Pradesh, came to Delhi at a young age with his parents who moved in search for better opportunities for their children. He graduated from Jamia Millia Islamia University with a bachelor of business administration degree (BBA) in 1999 and a master of commerce degree in 2001.
The owner of a construction company and a father of two sons, aged 9 and 11, Rehman remained close to his alma mater after graduating. In 2018, he was elected president of its alumni association.
Noorien Fatima, Rehman’s wife, told Article 14 that her husband had always been part of student politics, and he filed his nomination to be in a position to help needy students coming to Jamia and the national capital for the first time.
“Shifa sees Jamia as a home away from home for students who come to study in the university from all over the country,” she said. “He sees Jamia as an emotion, not just as a university, with the entire university contributing to the culture, economy and politics of the Muslim-majority area.”
Fatima, a 39-year-old homemaker, recalled how many times she had tried dissuading him from joining the anti-CAA protests because she knew that it would end with the state cracking down on the protesters.
“I never wanted him to participate in the protests,” she said. “He told me, ‘It is not about us, we have ample documents to prove that our family has been living in India since generations, but what about Muslims who are illiterate, undocumented and unfed, how will they prove their nationality?’”
After almost two years in prison, the Delhi riots conspiracy case is yet to go to trial, with the proceedings at the stage where lawyers for the accused are asking the prosecution for the supply of deficit documents under section 207 of the Criminal Procedure Code, 1973. The matter was held up for months when the police resisted giving Delhi-riots accused photocopies of the 17,000 page chargesheet, arguing the law requiring them to do so is 122 yrs old, before photocopiers were invented.
Talib Mustafa, the lawyer for co-accused Sharjeel Imam, told Article 14 that even though cognizance of the offences were taken almost a year and half back but for the pending section 207 applications, charges have not yet been framed.
“No doubt the case records are extremely voluminous and there are 18 accused persons in the case but still the delay is quite unusual,” said Mustafa. “The same may be attributed to extreme burden upon the Special Courts with the Delhi Riots cases eventually leading to these delays but nonetheless, the right to speedy trial of the accused persons are being seriously impacted.”
The chargesheet of FIR 59/2020 accuses Rehman of “managing the protest sites as well as the execution of the conspiracy hatched for the riots in Delhi”. Rehman, as the president of AAJMI, as per the chargesheet, “used funds from overseas accounts for providing logistical and other support to protestors and rioters,” amounting to lakhs of rupees, and prepared fake bills to the tune of Rs 1,69,554 to conceal some of the spending.
Rehman is accused under section 17 of the UAPA, punishment for raising funds for terrorist act, punishable with a prison term of not less than five years that may extend to imprisonment for life, and a fine.
While refuting the charge, advocate Amit Bhalla, who is representing Rehman along with Abhiskek Singh and Shrestha Arya, declined to speak on the merits of the allegation of terror funding because the matter is sub judice before the court of Additional Sessions Judge Amitabh Rawat in the Karkardooma Court Complex in New Delhi.
“Definitely, we refute it,” he said.
A Battle For Access To Legal Counsel
Since Rehman was arrested on 26 April 2020, his case has swung between having no access to his lawyer to a litany of bail hearings and adjournments.
Bhalla told Article 14 that when Rehman was first produced before the court following his arrest, the lawyers had access to him, but then it stopped even though he submitted several email applications to the Tihar jail authorities, demanding regular video conferences with his client.
On 30 June 2020 and 13 July 2020, Rehman filed applications before Judge Rawat for access to legal counsel. Despite two orders directing jail authorities to facilitate Rehman’s access, passed on on 1 July 2020 and 14 July 2020 by the district court judge, Rehman’s lawyers could not speak with him.
Following an application by the state to extend the period of investigation in FIR 59 from 90 days under section 167 CrPC to 180 days under section 43(D) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), Rehman’s lawyers filed another application for the court to direct the Investigating Officer to provide a copy of the application filed under 43(D) to him, allow him access to legal counsel, and three days to file a reply after he confers with his lawyers.
On 24 July 2020, the court granted time for the Delhi police to complete the investigation till 24 August, and in response to a second application under 43(D), extended it till 17 September.
(Under section 167 CrPC, in cases punishable with death, life imprisonment, and imprisonment for less than 10 years, the accused is entitled to default bail if the chargesheet is not filed in court within 90 days. But when a case is filed under the UAPA, the maximum time for filing a chargesheet is 180 days because Section 167 CrPC is read with section 43D (2)(b) of the UAPA, which allows for more time providing the court is satisfied with the report of the public prosecutor).
Following a petition filed in the Delhi High Court on 31 August 2020, challenging the extension of the period of investigation when Rehman did not have access to a counsel or the opportunity to object to it, Justice Vibhu Bakhru pulled up the Tihar jail authorities in September 2020, The Indian Express reported at the time.
“In this country, you cannot simply pick somebody and put him in jail and tell him that you cannot meet even your lawyer,” Justice Bakhru observed. “You have frustrated every attempt for the person to meet his lawyer.”
While Rehman’s petition said the denial of the opportunity to consult with his counsel violated the petitioner's right under Article 21 of the Constitution of India, protection of life and personal liberty, Tihar Jail authorities alleged that he refused to speak to the lawyers even when calls were arranged 16 times between May and August over the phone.
Justice Bakhru ordered the jail authorities to produce all documents or material to support their claim that Rehman was provided with the opportunities to meet his counsel, but he refused them, and concluded that jail authorities had “completely disregarded” the orders of 1 July and 14 July passed by the district court judge.
Bhalla said Rehman’s access to his legal counsel was restored after Justice Bakhru’s intervention in September 2020, but the verdict on his petition challenging the extension of the period of investigation under the UAPA came almost a year later.
Rights Violated But Cannot Offer Relief
Even though the Delhi High Court reserved the order against the petition filed before it on 31 August 2020 on 23 September 2020, the verdict came on 7 May 2021.
The prosecution had submitted the “Useless Formality” theory, which is that the complainant’s representation would have made very little difference to the outcome.
Justice Bakhru said the court did not accept non-compliance with the principles of natural justice on the grounds that even if the same were complied with, it would serve no useful purpose.
“The right of a person in detention to consult a legal practitioner of his choice is a right guaranteed by the Constitution of India and it is not open for the state to dilute this constitutional right on the ground that no purpose would have been served even if such consultation is permitted,” he said.
However, given that the chargesheet naming Rehman had already been filed (in September 2020), the court could offer no relief to Rehman.
Justice Bakhru said the court could not set aside the order extending the period of investigation, which would entitle the petitioner to default bail, because that would mean rejecting the state’s application for extension which was allowed by the district court judge.
“... even though certain rights of the petitioner have been violated, further relief as sought by the petitioner cannot be granted at this stage,” the court said.
‘The Right To Protest Is A Fundamental Right’
Rehman’s lawyers filed for bail in FIR 59/2020 in July 2021.
Bhalla said he has lost count of the number of hearings, estimating them to be around 20, with the next one scheduled for 2 March.
In a bail hearing on 27 July, Abhishek Singh, who has led the bail arguments for Rehman, argued that the central government had carried out the independent review of evidence under section 45(2) of the UAPA and granted sanctions for prosecution before evidence against Rehman was collected, making the sanctions void and his custody illegal. In the same hearing, Singh argued the police registered an FIR in response to Rehman’s complaint on 30 January 2020 against BJP leaders Kapil Mishra, Anurag Thakur, and Parvesh Verma for allegedly making hate speeches.
“The sanction was granted when the investigation was not complete,” he said. “I was vindictively arrested as I had made a complaint against a BJP minister.”
(On 10 February 2022, in a hearing opposing bail, Special Public Prosecutor Amit Prasad argued there is no merit to the arguments that if evidence is obtained beyond the sanctioned date later during further investigation, it cannot be relied upon by the prosecution).
In a bail hearing on 25 August 2021, Singh asked whether paying protesters was a crime under the UAPA, and why, if he is accused of instigating violence, did the police not make his speeches part of the record.
As per the chargesheet, Rehman told the police that he had deposited Rs 50,000 as cash into the AAJMI account, and withdrawn Rs 70,000 to cover expenses of the ongoing protest. It also said that over four lakhs was credited into a second AAJMI account, and documents showed the group had received Rs 7,60,000 from December 1, 2019, to February 26, 2020 including Rs 5,55,000 from the alumni working in Saudi Arabia, UAE, Oman and Qatar.
Noting that AAJMI had appealed for a peaceful protest, Singh said, “There is a fundamental right to protest. Why are you putting him in the bracket of rioters and not a protester? He had made some financial arrangements also. He paid some protesters who were protesting but does it make it an offence under UAPA?”
In a bail hearing on 8 September, Singh, objected to the prosecution’s use of the words, ‘protesters’ and ‘rioters’ interchangeably.
In a hearing on 10 February, on the issue of documentary discrepancies, Singh pointed out that his client’s arrest memo showed he was arrested from Mawana, Uttar Pradesh, but the chargesheet, as per his lawyer, showed that he was arrested by the assistant commissioner of police (ACP)Dharam Dev Negi in Delhi.
Singh said the prosecution was implying that he instigated riots because he was a member of the Jamia Coordination Committee (JCC), a WhatsApp group populated with students and activists who helped coordinate the anti-CAA protests from December 2019 to February 2020, but that being part of AAJMI or JCC is not grounds to make a person a part of the alleged conspiracy.
Singh argued multiple times that of the 10 office bearers at AAJMI when the protests were underway, no other office bearer had been accused of conspiring to instigate riots and jailed.
While making it clear that they are not advocating for any protester to be arrested, other defence lawyers in the Delhi riots conspiracy case have also questioned the basis of arresting their clients and not others when there is no qualitative difference in the things they have said or done over the course of the anti-CAA movement.
Called a “conspiracy of silence” by special public prosecutor Amit Prasad, the Delhi police case is built on a handful of WhatsApp messages and police witness statements whose credibility have been questioned by lawyers and a district court judge, and shown to be false. (Statements obtained in police custody have no evidentiary value in a trial).
Over the past two years, Delhi judges have pulled up the police over the quality of its investigation. In September 2021,
Article 14 published a study of court orders, where judges have called the probes and submissions 'absolutely evasive,’ ‘lackadaisical,’ callous,’ ‘casual,’ ‘farcical,’ and ‘painful to see.’
In a hearing on 22 February, Prasad argued that Rehman is “different” because as the president of AAJMI, he had “clout,” evident from his Facebook page that showed him going from point to point, addressing crowds at protest sites for mobilisation.
The prosecutor referred to a police witness who claimed Rehman spoke of people taking to the streets.
The prosecutor said that Rehman’s call records and Whatsapp messages showed that he was connected to co-accused Meeran Haider, Asif Iqbal Tanha, Safoora Zargar and Umar Khalid.
It is worth pointing out that none of the above-mentioned acts, including mobilising people for protests or even organising roadblocks (chakka jams), are per se illegal. As pointed out by the public prosecutor, they are displayed on Rehman’s Facebook page.
“There is a difference between protestors and rioters. The right to protest is a fundamental right,” Singh said in a hearing on 24 August 2021. “If a certain section of society is aggrieved by a piece of legislation and they protest against it, that is not a crime. They can certainly protest.”
(Tarushi Aswani is an independent journalist based in New Delhi.)