Police Get More Time To Prove “CAA Conspiracy” in Delhi Riots

18 Aug 2020 17 min read  Share

As the Delhi police get a fourth extension to prove that February’s communal riots were a “deep-rooted conspiracy” planned by those protesting the new citizenship law, we find: evidence thus far mainly limited to ordinarily inadmissible confessions made to police; riot victims as accused; and no action against police excesses and incitement by BJP leaders.

A fireman looks at the tyre factory in Gokulpuri that was the target of rioters in the February violence/RITIKA JAIN

New Delhi: On 24 February 2020, at around 3:30 pm, Riyazzuddin said that his 22-year-old son Rashid was working at his hardware store in northeast Delhi’s Shiv Vihar. Less than 100 metres away, Dilber Negi—a waiter at a local sweet shop—was on his after-lunch break at his employer’s godown, which also served as his home in this teeming city.

At around 3:41 pm, for a fraction of a second, Rashid appears on CCTV camera footage holding a fluorescent green plastic pipe—the kind used in water fittings—looking at a crowd running in all directions.

Six hours later, the Delhi police alleged, a murderous Muslim mob hacked Negi and set him on fire. Twelve men, including Rashid, are charged with his murder. Riyazzuddin said the charges were false.

The same day, a little over 2.5 km away, Faisal Farooq called the police several times to complain about the damage his Rajdhani Public School in Shiv Vihar sustained during the riots. The police accepted his first information report (FIR) on 5 March, almost two weeks after the incident. Three days later on 8 March, Farooq was arrested by the police for allegedly orchestrating the riots.

The Delhi police alleged the riots that raged through northeastern neighbourhoods of India’s capital between 23 and 26 February 2020—leaving 53 dead, of which 75% were Muslim, and 581 injured—were a “pre-planned conspiracy and centrally co-ordinated” by those protesting against the Citizenship (Amendment) Act, 2019, to coincide with US President Donald Trump’s visit to India.

The police said that no Bharatiya Janata Party (BJP) leaders were involved in the communal riots, despite open incitement by its leaders, which we detail later.

On 13 August, the city court gave the police a fourth extension to file a chargesheet in this case. The police now have time until 17 September to prove their claim that the conspiracy is, as the court said, “deep rooted, large-scale and multi-layered”.

The “different aspects pertaining to the different accused including their inter-linkages” with respect to the conspiracy were also being probed, the court noted. This chargesheet is supposed to contain the missing evidence the police are relying on to back their conspiracy claims.

A chargesheet is material that the police find during an investigation and presented to a court, which then decides if there is evidence to back charges made by the police.

The Delhi police have filed more than 200 chargesheets in their riot investigation. After an analysis of 12 key chargesheets filed by the Crime Branch, submissions filed in court and independent inquiries, we found that the chargesheets, so far, rely mainly on ordinarily inadmissible confessions made to police; riot victims have often been named as accused; no action or investigation is evident against police excesses and incitement by BJP leaders; and prominent activists who spoke against the new citizenship law have either been arrested or are being questioned, including Delhi university professors.

Article 14 made several attempts over two weeks to seek comment from the Delhi police, sending emails to Police Commissioner S N Srivastava and messages to the official spokesperson. There was no response. We will update this copy if and when they do respond.

Police File 200 Chargesheets, Little Evidence Yet

In one of the applications to a city court seeking additional time to complete its investigation, the Delhi Police on 17 June said that they had yet to arrest the key conspirators of the case, retrieve and analyse call data records, investigate source of illegal funds and unearth “the conspiracy in the multi-layered and the deep rooted conspiracy…”.

In a common reply filed on 13 July before the Delhi High Court in a batch of pleas pertaining to the Delhi riots, the police said the “carefully engineered” riots were also a conspiracy to “execute a secessionist movement in the country by propagating an armed rebellion against the lawfully constituted government of the day”.

United Against Hate (UAH) leader Umar Khalid, the alleged “mastermind” of the February violence was questioned by the Special Cell on 31 July. On 1 August, Delhi University professor Apoorvanand was summoned and interrogated by the Special Cell at length for his alleged connection in the larger conspiracy surrounding the riots. The police seized their phones.

If the police fail to file their chargesheet by 17 September, Khalid and Ishrat Jahan—two of the accused in the conspiracy case—will get default bail. Khalid and Ishrat Jahan were the first ones to be arrested in the larger conspiracy case. According to the provisions of the Unlawful Activities (Prevention) Act (UAPA), 1967, the police are required to file a chargesheet within 90 days, or a maximum of 180 days.

The aim of this “conspiracy”, the police alleged, was to “attract the attention of international media” to highlight “a narrative that the government of the day was anti-Muslim and by the use of the state machinery/force was executing a pogrom against Muslims…”

In an order dated 8 July, Special Commissioner of Police (Crime) Praveer Ranjan citing “intelligence inputs” said arrests of “Hindu youth” from riot-hit areas in Northeast Delhi had caused a “degree of resentment among the Hindu community” and cautioned senior officers leading the investigation to “suitably” guide its team members.

The Delhi High Court on 31 July termed this order “mischievous”. The court was responding to a plea filed by Sahil Parvez and Mohd Saeed Salmani—they lost a parent each in the violence—to quash this order.

On 7 August, the Delhi Court refused to quash the order observing that “no prejudice has been caused” by the direction since the order was issued after chargesheets against the accused had already been filed. During the hearing held by video conferencing, advocate Amit Mahajan—special counsel appointed by Delhi Lieutenant Governor (LG) Anil Baijal to represent the Delhi police in the riots matter in the high court—said 535 Hindus and 513 Muslims have been arrested in the violence so far.

Police Omissions And Commissions

In a common reply filed on 13 July, the police said, as we mentioned before, that there was no evidence linking BJP leaders to hate speeches in the days leading to the riots that lasted almost three days. Cross petitions accusing Congress and Aam Aadmi Party (AAP) leaders of hate speeches were also filed.

In reaction, lawyers and civil rights activists point to these facts:

  • At least one BJP leader (his affiliation to the party has not been disclosed in the chargesheet) has been accused of murdering 25-year-old Irfan.

  • 16 RSS workers have been accused of rioting and murder. Riot-affected victims accuse the police of burying complaints filed against BJP leaders

  • A fact-finding report by the Delhi Minorities Commission (DMC) names at least 10 BJP leaders for fanning communal flames and instigating riots

Commenting on BJP leader Kapil Mishra’s alleged role in the riots—reports have said the riots began with his speech—the police said: “In case, during investigation, the role of aforesaid persons in commissioning of the offences in the respective FIRs would surface, then Delhi Police would be duty bound to take statutory steps as mandated under the law against the aforesaid persons… However, no fresh FIR is warranted at this stage.”

The police—which come under the Home Ministry headed by Amit Shah—have been intensely criticised (here, here and here) for failing to control the violence.

The police have also been caught on video, smashing CCTVs and beating and forcing a group of Muslim men to sing the national anthem. Numerous complaints indicate that Dalits were also targets during the riots. But police excesses and the Dalit allegations have not been investigated.

On 26 February, while hearing a plea seeking registration of FIRs against those who indulged in violence, the Supreme Court criticised the police and observed there was a “lack of independence in the professionalism” on its part. “All these things (violence) would not happen, if the police had acted strictly as per law,” Justice K M Joseph had said. A few hours later, the Delhi High Court expressed its “constitutional anguish” and held the police accountable for the riots.

As early as March, a group of former senior officers accused the Delhi police of failing in their duty. A Delhi court in May remarked that the “perusal of the case diary reveals a disturbing fact”, that the police investigation in the riots were “targeted towards one end...upon enquiry from Inspector Lokesh and Anil, they have failed to point out what investigation has been carried out so far regarding the involvement of the rival faction”, a reference to the Hindu right-wing.

Human Rights Watch, a global advocacy, on 15 June alleged police bias while requesting Indian authorities to “immediately drop politically-motivated charges” and release those who were “peacefully protesting against citizenship policies that discriminate against Muslims”.

Two fact-finding reports released in July by Karwan e Mohabbat (KeM), an advocacy, and the DMC accused the police of a biased investigation, a sentiment echoed by 72 prominent citizens—including former police officers, diplomats, bureaucrats—in a letter to President Ram Nath Kovind.

The police and the fact-finding missions agree on one thing: the riots were pre-planned and not spontaneous. They however disagree on the perpetrators.

In its most comprehensive affidavit yet, the Delhi Police on 13 July gave a detailed breakup of the victims by religion. According to the list, 75% or 40 victims who died were Muslims, whereas 25% or 13 (including head constable Ratan Lal and Intelligence Bureau official Ankit Sharma) were Hindus.

Thirteen mosques and six temples, 185 homes (Muslims-50, Hindus-14) and 468 shops (Muslims-173, Hindus-42, Unknown-5) were damaged in the riots that lasted four days; 108 police personnel and 473 civilians were injured, according to the police affidavit. Muslims bore the brunt of the violence, accounting for 55% of civilians injured, The Wire reported on 16 July.

Delhi Police said 751 FIRs were registered. Three police teams are investigating the violence: Special Investigation Team (Crime Branch)—59 cases; local police—691 cases; and the Special Cell, probing the main conspiracy case in which 14 are accused so far. Till the time the affidavit was submitted, 200 chargesheets (SIT—43; Local Police—157) were filed.

A man cycles through a riot-torn area in the aftermath of the violence/RITIKA JAIN

Complaints Against BJP Leaders Ignored, Muslims Seek Witness Protection

The police have been accused of burying complaints filed against as many as 10 BJP leaders for their involvement in the riots. According to Hindustan Times, at least three petitions have been filed in a city court seeking directions to the Delhi police to register an FIR against Mishra. Six other residents have filed complaints as well.

Mishra, a former MLA who represented Karawal Nagar, one of the riot-affected areas in Delhi, stood under the Maujpur Metro station and gave the police an ultimatum to clear anti-CAA protestors located a little over a kilometre away. “Dilli mein aag lagi rahe, ye yahi chahte hain, isiliye inhone raaste band kiye, isiliye dange jaisa maahaul bana rahe hain. Hamari taraf se ek bhi patthar nahi chala hai (Let Delhi continue to burn, these people [the anti-CAA protesters] want this only and that is why they have blocked the roads and that is why they are creating a riot-like situation. We did not pelt a single stone during the rally),” Mishra said in a speech on 23 February, on the eve of Trump’s visit, in the presence of Deputy Commissioner of Police (North-East) Ved Prakash Surya.

Mishra’s speech was also one of four videos played on 26 February by the High Court for Solicitor General Tushar Mehta and other police officials who claimed they had not seen the video. The judge, Justice S. Muralidhar (sitting with Justice Talwant Singh), who played the video and had, the previous day (this time with Justice Anup Jairam Bhambani), ordered ambulances to ferry the riot-affected victims to the nearest government hospital, received a midnight transfer order to the Punjab and Haryana High Court after the hearing.

Days later, a video featuring Mishra was widely shared on a 125-member WhatsApp group ‘Kattar Hindut Ekta’ created on 25 February. A chargesheet filed in connection with the murder of three Muslim men linked this WhatsApp group to users who bragged about “killing Muslims” and “dumping their bodies in the sewer”. In the chargesheet, the police only submitted the link of an interview featuring Mishra not the video itself.

On 22 March, Nissar Ahmed—a key prosecution witness in at least three cases—named a local BJP councillor Kanhaiya Lal as one who exhorted the mob to riot. However, even though Ahmed’s testimony featured in the chargesheet, the politician’s name went missing.

Fearing retaliation, several Muslim complainants have sought witness protection from court.

The police also ignored speeches by BJP leaders in the run up to the assembly Elections in Delhi and the riots. The Election Commission (EC) temporarily banned Union State Finance Minister Anurag Thakur and BJP MP Parvesh Sahib Singh Verma from campaigning in Delhi. Thakur led supporters in a chant: “Desh ke gaddaron ko, goli maaro saalo ko, (shoot all the traitors of our nation)” while Verma was cited for multiple violations of the EC code of conduct.

The Fundamental Police Argument: A Conspiracy

The Delhi-police argument that the riots were a “deep rooted conspiracy” by anti-CAA protestors is the foundation of all investigations, irrespective of the victim’s religious identity.

In other cases where chargesheets have been filed, the operative parts describe how “conspirators” or “masterminds” began planning riots at protest sites, influenced local organisers—who helped with logistical support and organised speeches, according to the police—who in turn instigated local protestors and rioters, who attended the protests and participated in riots.

The police narrate a 2,500-word chronology of events from 13 December 2019—a day after the CAA was passed in the Parliament and the day violence broke out in Jamia Milia Islamia (JMI) university—till the violence in northeast. This chronology is replicated in almost all the chargesheets Article 14 analysed, but it skips the inflammatory speeches by BJP leaders and the attack by masked assailants on students at the Jawaharlal Nehru University (JNU) on 5 January.

“The makers (BJP leaders) of these speeches were never held to account even when their political content was surely the moral equivalent of a threat to do violence, physical and psychological harm,” said the KeM fact-finding report. “The result was legitimisation of hate and equating the disagreement with and opposition to the CAA as seditious, as disloyalty to the nation, which should attract punishment.”

The Minorities Commission said that “crucial aspects of the entire chain of events are missing from most of the chargesheets that have been filed till date”, such as the fact that “almost all the North East Delhi violence-related cases that Police are investigating are based on the premise that riots were planned by anti-CAA protesters to coincide with the US President Donald Trump’s visit to India in the third week of February”; speeches and statements made by Mishra and other BJP leaders inciting violence.

Lawyers said the investigations in the FIRs appear to be vehicles to back the conspiracy angle.

“50% of the chargesheet is this narrative. When it comes to a particular incident, there is no direct evidence,” defence lawyer Abdul Gaffar was quoted as saying in HuffPost India. “I feel the focus of the investigating agency has been to set a narrative that the people who organised the (anti-CAA protests) are behind the protests.”

The charge sheets linked to the conspiracy include those related to the deaths of Dilber Negi, the waiter from the sweet shop burned to death in the godown mentioned at the start of this story; Delhi police head constable Ratan Lal, shot by an unknown assailant while trying to control a mob; Intelligence Bureau staffer Ankit Sharma, found dead near Hussain’s house; 85-year-old Akbari Devi, asphyxiated in her house after it was set afire.

In the investigation connected to Shahid Alvi’s murder, the police claim he was a rioter and was mistakenly shot by fellow rioters. As with other charge sheet, this one, too, focuses on the conspiracy rather than Alvi’s death.

Several student leaders and prominent citizens have been arrested for this “larger conspiracy” case, being investigated by the Special Cell. Jamia MIlia Islamia (JMI) students Meeran Haider, Safoora Zargar, Asif Tanha; expelled Aam Aadmi Party (AAP) MLA Tahir Hussain, MBA graduate Gulfishan Fatima, ex-Congress Councillor Ishrat Jahan and eight others are named as the main conspirators and the mastermind of the riots. They are charged with a variety of crimes, including sedition, attempt to murder and terrorism.

In its application seeking additional time under the UAPA to complete its investigation against accused Shifa-ur-Rehman, the police argued “a new layer of conspiracy has surfaced in the name of a group”—not named—which is “the managing and controlling organisation of the JCC (Jamia Coordination Committee)”.

“One set of investigation has been given priority in which the fanciful story of the CAA protestors as conspirators has been repeatedly suggested,” said Supreme Court advocate M R Shamshad, who led the DMC inquiry. This narrative is to create a perception to put everything wrongly upon the protestors.”

Cases Built On Inadmissible Confessions

The police case relies almost entirely on statements the accused have made to the police. The evidence, if any, “is weak”, advocate Mehmood Pracha said. “And yet, the accused have been charged with heinous offences.”

In the Dilber Negi matter, nine of 12 disclosure statements are nearly identical, a pattern evident in other charge sheets.

In his disclosure statement, AAP MLA Tahir Hussain met Khalid Saifi and Umar Khalid—leaders of UAH—as early as 8 January to plan communal riots, according to the police, who have made the accusation with no backing evidence.

On 20 June, a city court granted bail to Farooq, since there was no “material on record” to prove his presence at the school during the riots. The judge noted that Farooq was also a “victim”, with two of his schools attacked during the riots. There was, said the judge, “...considerable delay (11 days) in registration of FIR” against Farooq which, the police could not explain, further “points out towards concoction of the false implication” against him.

The police not only failed to prove Farooq’s presence “at the spot at the time of incident.” but the chargesheet against him was also “bereft of material showing his links with PFI (Popular Front of India), Pinjra Tod group and Muslim clerics”, the judge said.

On 24 July, while extending the judicial custody of Pinjra Tod activists Devangana Kalita and Natasha Narwal, along with former Congress municipal councillor Ishrat Jahan, another city court criticised the Delhi Police for its failure to preserve footage from Jaffrabad and Maujpur metro stations. Photos taken by its photographers have not been preserved as well, the court noted, accusing the police of being in a “state of inscrutable indolence”.

The court then requested the “worthy DCP” (Deputy Commissioner of Police (Special Cell) Sanjeev Kumar Yadav) to personally monitor the investigation in order to ensure the “sterling image of Delhi Police remains blemish-free & the flow of the course of justice remains unsullied”.

A defence lawyer for one of the accused in the conspiracy case, requesting anonymity for fear of police reprisals, said: “In our practice, we have seen that 90 of 100 times, disclosure statements are identical.”

Statements or confessions made to police officers are generally inadmissible in a trial, although there are circumstances where they are, such as dying declarations or when confessions lead to a discovery of a fact, legal experts said.

Statements made to magistrates on oath are considered substantive evidence. If a suspect retracts from a statement made to the magistrate or says something to the contrary during trial, it is liable to attract charges of perjury.

“In fact, in the Ratan Lal chargesheet, certain statements made to the magistrate were verbatim as well,” the lawyer, who did not want to be identified, said. “This is a troubling pattern,”

Lawyer Sarim Naved, who is not connected with any of the trials, said that the language in witness depositions or disclosure statements is important.

“When an individual makes a statement, his choice of words reflect the socio-economic status, level of education and the environment which they come from,” said Naved. “This makes it difficult to digest that disclosure statements of any two people could be identical.”

Beguna logo ko fasaya jaa raha hai (innocents are being implicated),” Riyazzuddin, the hardware-store owner and father of accused Rashid mentioned at the start of this story, told Article 14. He said Rashid was forced to sign a blank paper and that the disclosure statement attributed to him was false. “We live just above our shop,” Riyazzuddin said, of Rashid being captured on CCTV. He stepped out to see what was going on, and then went home immediately, according to his father.

“Across investigations, no test identification parade (TIP) has been done,” said lawyer Maneka Khanna, who represents some of the accused. “These crimes were not committed in the dark of the night, in the absence of witnesses. The law is clear on this, the identification of accused persons by witnesses should be supported by TIP proceedings.”

“The police are relying on CCTV footage captured hours before the crime,” said Khanna. “It is not enough just to be present at the spot of crime, it is also imperative to investigate the reason for being there and whether I shared a common intent to commit a crime in an unlawful crowd.”

Police Accused Of Bias Against Muslims

The minority commission report termed the Delhi police approach to the riots a “constitutional bias” against Muslims.

“Non-registration of FIRs or delayed action on complaints naming the accused of riots, loot, arson and murder has led to no investigation in many crucial cases,” said the report. “Cases like the shooting from Mohan Nursing Home, instigating and inflammatory statements of Shri Kapil Mishra, have not been registered despite High Court’s observation.”

Fauzia Shakeel, a lawyer helping with the defence of many accused, said: “A bare perusal of the chargesheet will reveal how brazenly partisan the investigation by Delhi police has been. En masse implication of members of one community alone.”

“Victims and eye witnesses have been interrogated and made accused,” said Shakeel. “Cases have been made on totally inadmissible evidence like confessional statements made before police.”

The language used in the charge sheets provides some insight.

In the Dilber Negi chargesheet, the Muslim accused are referred to as “khalnayaks” or villains. The Ratan Lal chargesheet quotes a complainant who called the PCR [police control room] as saying protestors were “very aggressive” and the crowd “threatening”. In contrast, a Hindu mob—in the Abkari Devi chargesheet where six Hindus are accused—had “no personal enmity to the complainant”, but were simply “caught up in the communal frenzy”.

The minority commission report has also accused the Delhi police of participating in the riots. It said the “failure to prevent communal violence was not due to individual or sporadic breaches, but was a pattern of deliberate inaction over several days”. A viral video clip featured the Delhi police forcing Muslim men to sing the national anthem. A 23-year-old who was beaten in that incident died on 28 February.

“Delhi police were part and parcel of the attacks on the Muslim community and peaceful protesters of CAA and the NRC (National Register of Citizens),” said Pracha. “Therefore, in a way the police are also an accused in these cases. If an accused conducts an investigation in its own crime, the result would be what we are seeing.”

“In comparison to the Muslims and the CAA/NRC protestors, there is a plethora of quality evidence, including scientific and eyewitnesses against BJP, RSS and police officials,” said Pracha. “Yet, they are allowed to go scot free.”

The Chilling Effect Of A Changing Narrative

The Delhi police have been accused of arbitrarily arresting those who have been critical of the government, especially those protesting the contentious CAA that was passed by the Parliament on 12 December 2019.

“If a case against an anti-CAA protestor is invoked based on their WhatsApp conversations and other inferences that allegedly make them violent in nature, then by the same yardstick, how are Parvesh Verma, Kapil Mishra and Anurag Thakur any different?” said Naved, the lawyer. “Let the police take a uniform approach as per law. If the police are criminalising any speech that is even remotely violent then arrest everyone. That would be fair.”

Lawyer Fawaz Shaheen accused the Delhi police of trying to “change the narrative” by arresting student leaders from the Jamia Coordination Committee, Pinjra Tod and other student organisations.

“Everyone could see that the sabre-rattling was being done by mainstream BJP leaders,” said Shaheen. “This narrative needed to change.”

“I have no doubt that when the trial ends, those arrested in (in the conspiracy case) will be acquitted,” said Shaheen. “But if one goes by the justice system, the narrative will have changed by then. Those who actually incited violence and instigated the riots (right-wing leaders), they will have been forgotten and the real culprits would have gotten away.”

The arrests have had a twin “cascading and chilling” effect on activism in general, said Shaheen, who is with the Quill Foundation, a research and advocacy centre. “The message these arrests have sent says—you may protest, but make sure it's in moderation.”

Two journalists tweeted (here and here) about calls they received on 27 February from the police, asking about their whereabouts in Karawal Nagar, one of the riot-hit areas. The journalists, who were reporting the riots on that day, were told their numbers were sourced from “dump data”, a database they obtained.

Archis Mohan said though he was unsettled when the police first called him, it appeared, in hindsight, a routine investigation.

“The cop was rude and right off the bat said ‘main teri saari janam kundli jaanta hu (I know every little detail about your life)’. But when he questioned me about my whereabouts, I realised he was just fishing in the dark,” said Mohan, then political editor, Business Standard. ‘He had not done even basic research on my phone number. And when I told him I was a journalist, the cop went, accha aap patrakar ho (oh, you are a journalist)’.”

Lawyer Shaheen is optimistic that the justice system will eventually prevail. “I am also hopeful that this is a temporary measure,” he said, “And that people will be out to protest again.”

(Ritika Jain is a Delhi-based freelance reporter.)