Kozhikode/New Delhi: If Siddique Kappan, a journalist from Kerala who is currently an undertrial in an Uttar Pradesh (UP) jail, gets bail on 9 September, the date fixed by the Supreme Court to decide his petition, he will walk free after a detention that has lasted 704 days.
If he does not get bail, he will complete two years in prison in the first week of October.
Kappan’s case is a reflection, said lawyers, a former chief justice and his colleagues, of an egregious miscarriage of justice, deliberate misinterpretation of India’s laws and vindictive prosecution. According to the UP police and government, it is an example of a man conspiring with Islamists to plot terrorist activities behind the facade of journalism.
Kappan, 43, a reporter with more than a decade in journalism, mostly as a Delhi-based reporter for Malayalam news publications and websites, argued in his latest petition, accepted by the Supreme Court on 29 August, that his case raises “seminal questions pertaining to the right to liberty, as well as the freedom of expression and speech vested in independent media under the aegis of the Constitution”.
His imprisonment, with no sign of trial, “has caused untold financial and mental hardship to his family and friends”, said Kappan in his special leave petition, presenting himself as “an individual with clean antecedents”, who had “never fallen foul of the law”.
Kappan’s special leave petition—which allows petitioners aggrieved by the order of any court special permission to be heard in the Supreme Court—was filed after the Allahabad High Court, on 2 August, dismissed his bail plea, upholding the UP police argument that “he had no work at Hathras,” as a journalist.
The case centres around the 5 October 2020 arrest of Kappan, a cab driver—released on bail on 23 August —and two young Muslim activists who were en route to the district of Hathras in western UP. Kappan's assignment was to cover the rape and murder of a 19-year-old Dalit teen, whose body was cremated by the police against the family’s wishes.
Kappan’s special leave petition said he has spent almost two years in jail “on trumped-up charges”, when was only trying “to discharge his professional duty of reporting on the infamous case of the Hathras rape/murder”. The UP police alleged his reporting was meant to “incite Muslims” and cite 36 stories he had written, focussing on minority issues, as evidence.
Kappan, whom the UP police alleged received funding from Islamists, within India and from abroad, alongwith eight others, faces charges under seven sections of three laws, including “promoting enmity between different groups”, “deliberate and malicious acts intended to outrage religious feelings”, “criminal conspiracy” and “raising funds for terrorist act”.
Kappan’s case, experts have said, is a bellwether case that raises fundamental questions about India’s justice system: attributing criminality, including terrorist motives, to professional duties; the restrictive bail conditions imposed by the anti-terror law, the Unlawful Activities (Prevention) Act or UAPA, 1967; seemingly endless incarceration without trial or bail; and the use of the justice system to crackdown on journalists and dissenters.
“The only message flowing from his continued incarceration is that voices of dissent shall be punishable,” former Allahabad Chief Justice Govind Mathur told Article 14.
“Journalists are the voice of the public at large, exercising citizens’ right to express themselves,” said Mathur, referring to Kappan specifically and to growing police action against other journalists. “They provide a platform to the voice seeking justice. Their arrest and continued incarceration is a serious blow to free press which is fundamental to a democratic society.”
The Criminalisation Of A Profession
Kappan’s special leave petition noted that he was “a journalist of 12 years experience who has also served as the secretary of the Delhi chapter of the Kerala Union of Working Journalists”. The UP police accuse him of “inciting violence” and their chargesheet against him accuses him of “not writing like a responsible journalist” and receiving Rs 80 lakh from Dubai and Muscat to further a “terrorist agenda”.
The police contend they have evidence for this funding, but there appears to be no direct evidence. When the Allahabad high court dismissed Kappan’s bail application, it said: “The tainted money being used by the applicant and his colleagues cannot be ruled out.”
According to Kappan’s current petition before the Supreme Court, whatever money he received was remuneration for his job as a “professional journalist”. He wanted to use the money, he said, to construct a house for his family.
The petition said a key allegation against Kappan—that he was travelling to Hathras with others to “incite communal riots” and disrupt “social harmony”—was “absolutely absurd”.
Kappan’s petition also questioned the Allahabad high court observation that he “had no work” at Hathras: “Whether (sic) the Hon’ble High Court has failed to appreciate the fact that the Petitioner herein is a journalist, and travelling and covering the events around the country is the fundamental part of his profession as a journalist?”
Worsening Conditions For Journalists
Former Allahabad Chief Justice Mathur, who retired in April 2021, said it was “interesting to notice” that the alleged crimes committed by Kappan, “a middle-aged person, a long time journalist who was stationed in Delhi for last six years”, came to the knowledge of the UP police only when he was arrested en route to Hathras.
“The circumstances indicate efforts on part of the police to gag journalists reporting an incident that reflects not only an absolute failure of administration in maintaining law and order but also an act to vanish evidence,” said Mathur.
Justice Mathur said that since the charge sheet—about 5,000 pages—against Kappan had been filed, he was no longer required for investigation and “no purpose shall now be served by his incarceration”.
Imprisoning journalists, said Abhinav Sekhri, a Delhi-based lawyer, “casts a chilling effect across society”.
Though courts and judges often praise the value of the dissent in democracy (here, here and here) and critically comment on State actions, “the people tasked with enabling others to form such critical thought routinely finding themselves at the wrong end of the stick”, said Sekhri.
Since 2020, attacks on independent media in India have surged, with arrests, terror and sedition cases, even as a right-wing ecosystem issues rape and death threats and discredits any narrative against official interests, Article 14 reported in February 2021.
Of 154 Indian journalists arrested or facing government hostility for their professional work between 2010 and 2020, more than 40% were in 2020 alone, an analysis by the Free Speech Collective, an advocacy group, found.
In 2021, India had the “highest number” of journalists–four–confirmed to have been murdered “in retaliation for their work”, according to a December 2021 report published by the Committee to Protect Journalists (CPJ), a global journalism advocacy. India has imprisoned six journalists, including Kappan, on charges of working against the State, according to CPJ’s database.
How The UAPA Has Kept Kappan In Jail
One of the laws that has kept Kappan and others like him in jail without trial is the UAPA, which limits the discretion of judges to grant bail (you can read Article 14 reporting and analyses of the law’s infirmities here and here).
The provisions of the UAPA—at the heart of ongoing cases filed against a host of activists, dissenters, academics and journalists—are “criminally overbroad, excessively vague, and short of a legislative carte blanche to state-sponsored violations of fundamental rights guaranteed by the constitution”, Sekhri wrote in April 202.
Under the general law, if the police require custody of an arrested person beyond 24 hours, this must be authorised by a magistrate. Ordinarily, police seek “police custody” where the person is needed for investigative purposes and “judicial custody” when there is no such need.
Apart from placing strict limits on the duration of police custody, the Criminal Procedure Code (CrPC), 1973, also limits the period for which an accused may be detained during an investigation; police must complete an investigation within 60 to 90 days (depending on the gravity of the alleged offence) of arrest.
On failure to meet this deadline, the arrested person becomes entitled to bail. Through these mechanisms, the law seeks to ensure there is no indefinite detention for purposes of investigation.
An accused in a UAPA case faces a very different legal reality than that charted under the CrPC. The UAPA expands the 15 days of custodial remand at a stretch to 30 days—including for police custody. The provision also permits the police to seek custody at any time during the investigation—not just at the beginning. The UAPA also allows a judge to permit custody during the investigation up to 180 days, instead of the 60 or 90 days under the CrPC.
Sekhri said Kappan was denied bail largely due to the “seriousness of allegations” under the UAPA, which flips the regular law of bail on its head, with courts required to primarily focus on the merits of the case to determine whether or not bail should be granted.
The test, as per section 43-D(5) of the UAPA, is for courts to refuse bail if, upon considering the police material, they are satisfied that there are “reasonable grounds for believing that the accusation against such person is prima facie true”. This is standard for granting bail even where the investigation is underway, which, as appears to be in Kappan’s case, implies that the police themselves might not have the material to make such a determination.
“In a setup, where the accused can only prove innocence at trial, condemning him to practically indefinite incarceration on the strength of allegations primarily is the clearest affront to any sense of liberty and principles of presumption of innocence,” said Sekhri.
Kappan’s bail plea was dismissed by the Allahabad HC because the judge was “agreeing with the state’s case”, said Sekhri. “If it is shown that X is a professional (journalist), having accreditation, etc., then surely mere allegations ought not to discredit one's professional existence in the absence of credible supporting material.”
While the Supreme Court considers these legal details, Kappan’s family and colleagues waver between hope and despair.
‘I have hope, anxiety:’ Kappan’s wife
Raihanath Kappan, the journalist’s wife, told Article 14 that while she was “waiting for the Supreme Court’s decision with hope”, she was experiencing anxiety as well.
Trained as a laboratory technician, Raihanath, 40, said the Supreme Court decision to immediately agree to hear Kappan’s petition and the announcement of a date for the hearing had pushed away some of the despair.
“In high court, things moved very slowly,” said Raihanath. The Allahabad high court pronounced its verdict on Kappan’s bail plea in August 2022, nearly six months after Kappan filed his petition.
“I suffered a lot, I learned a lot,” said Raihanath of the time she and her three children, aged 18, 14 and nine, had spent without Kappan.
Raihanath said she struggled to run the family in Kappan’s absence, but added that she could not give up. “I had to take care of a family, I had to look at matters related to [Kappan’s] case,” she said. “You may be broken, but this is not a time when you can rest. You have to remain strong.”
As she spoke, her voice broke more than once.
Raihanath said she was often “sleepless”, especially after the Supreme Court agreed to hear Kappan’s case. “I am in prayer,” she said, adding that neighbours, family and friends were as well. “I hope he will get bail.”
Kappan’s friends and colleagues have remained steadfast, providing detailed accounts of his professional work, which the UP police have doubted.
How Journalists Travel, Especially In Unfamiliar Territory
Kappan’s journalist colleagues—both in Kerala and Delhi—refused to believe UP police charges against him, questioning the allegation that he went to Hathras for anything other than reporting.
U M Muqthar, a reporter with the Suprabhaatham newspaper, said he had known Kappan since 2014, and offered his own experiences to address police allegations that Kappan was somehow involved in a conspiracy by travelling to Hathras with activists of the Campus Front of India, the student wing of the Islamist Popular Front of India, organisations that are not banned.
Muqthar, who worked in Delhi before he moved back to Kerala recently, said it was common for reporters, especially those with print or online publications, to travel with fellow journalists and even with activists for reporting assignments.
Journalists said sharing vehicles was common, especially for those uncomfortable or unfamiliar with northern India. Banding together also helps save money.
“Kappan and I shared our travel expenses during some of our journalism assignments outside Delhi,” said Muqthar. “For example, we went together to Nuh, in Haryana, to report on the plight of Rohingya refugees there.”
“A key difference between print and electronic media is that when something happens—like a riot or a rape-murder like what happened in Hathras— television journalists can go there as a unit, with their own vehicle and other crew members,” said Muqthar.
“Not everyone has their own vehicle, especially journalists for small media organisations like Thejas and Azhimukham (news organisations that Kappan worked for),” said Muqthar, who said he often visited different states on assignment when he was in Delhi.
“I even saw journalists, who work for media organisations with better financial backgrounds, accompanying some fact-finding teams both to reduce their travel expenses and to have company,” said Muqthar. “For example, a Madhyamam (a leading Malayalam newspaper) journalist I knew accompanied a fact-finding team of activists to Kashmir after Article 370 was abrogated. Such joint travel is not uncommon.”
“I assume Kappan was also accompanying those activists—or, a fact-finding team—from the Campus Front of India for the same reasons, to Hathras,” said Muqthar.
Two Delhi-based Malayalee journalists, Dhanasumod D and M Prasanth, said Kappan had informed them and other journalists about his plan to visit Hathras. Dhanasumod is the secretary of the KUWJ’s Delhi unit, and Prasanth the vice president.
“Kappan asked many of us whether we had any plan to go to Hathras, to share the travel expenses,” said Prasanth, a reporter with Deshabhimani, a Left-leaning daily newspaper. “Many of us knew in advance he was going to Hathras to report on the heinous crime.”
When he was arrested, Kappan was on assignment for Azhimukham.
Colleagues said Kappan, who was unemployed for a while, was from a disadvantaged family of seven children, and he struggled financially because some newspapers he worked for paid journalists a minimal amount.
One of the writers of the story you are reading, for instance, was recently paid Rs 750 for writing a lead story for a Malayalam newspaper.
‘A Reporter For The Marginalised’
The UP police alleged that Kappan wrote “false and communal reports” during the 2020 Delhi riots, where the majority of victims were Muslims.
“During a riot, when you take the name of only a particular community and publish incidents related to that community, members of that community get enraged. Responsible reporters do not indulge in such communal reporting,” said the UP police charge sheet. “But Siddiqui Kappan’s journalism was only meant to incite Muslims and to further the agenda of the PFI that wants to provoke riots and communal feelings.”
Journalists who have known Kappan for years said his work certainly focussed on minorities and the disadvantaged.
“He had a vision of the social empowerment of weaker sections of Indian society,” said N P Chekkutty, a journalist and author from Kerala who was also Kappan’s editor at Thejas, a daily newspaper. “He is a person committed to his profession. He is objective in his reporting … he doesn’t have a sectarian mindset.”
“An allegation against Kappan is that he reported more on issues pertaining to minorities,” said Chekkutty, who is also the chairman of a joint platform formed in Kerala for Kappan’s release. “But, the fact is that during his tenure (as a reporter in Delhi), there were a large number of issues pertaining to minorities. Our newspaper also gave special attention to the issues of minorities, Adivasis and other marginalised communities.”
In June 2021, Article14 reported that Kappan reported on current affairs, crime and politics. The subjects of the stories he wrote included: riots in Northeast Delhi in February 2020, an interview of lawyer-activist Prashant Bhushan, the citizenship issues in Assam, a Pakistani octogenarian separated by Partition tracing her roots in India, Urdu Malayali poet Syed Mohammad Sarwar and jailed professor G N Saibaba.
“Like other reporters who worked for [small Malayalam] newspapers [in Delhi], Kappan too covered almost everything from Delhi,” said a journalist who knew Kappan and spoke on condition of anonymity.
Dhanasumod and Prasanth said Kappan particularly focussed on issues related to marginalised social groups, such as Dalits, Muslims and others. “He was also keen to report on issues that exposed Sangh parivar politics,” said Prasanth.
“The Kappan I know is not someone who would work against communal harmony, but someone who stood for it,” said Dhanasumod.
Kappan himself said his journalism was indeed focused on marginalised communities. “It is submitted that the Petitioner has written articles putting a spotlight on the plight of Dalits and minorities,” said Kappan’s petition to the Supreme Court. “No articles promoting rivalry between communities have been written by the Petitioner”.
‘A Sensible Person, Committed To His Job’
“What I found in Kappan was that he was a sensible person … committed to the job,” said his former editor, Chekkutty, who knew Kappan as a colleague for eight years, first as at Thejas’ news desk in Kozhikode but mostly as a reporter in Delhi.
“He was posted in Delhi after a vacancy emerged there (in 2013),” said Chekkutty, a regular commentator on political issues for Malayalam news channels. “He covered the Supreme Court and national issues for us.”
Chekkutty said what Kappan had to go through over the last two years was “very unfortunate”. He alleged some members from the journalist fraternity also had a role to play. “He is a victim of internal rivalry within the journalist fraternity,” said Chekkutty. “The UP police have made use of this rivalry.”
Chekkutty was apparently referring to the alleged rivalry between two groups of Kerala journalists in Delhi during a union election and the UP police’s inclusion of statement of a Malayalee journalist against Kappan in their charge sheet.
Binu Vijayan, a journalist with the Malayala Manorama, a leading newspaper, in his statement to the UP police, reportedly alleged that Kappan misappropriated funds when he was secretary of the Delhi unit of the KUWJ and spread “fake news to incite communal violence” and “pose danger (sic) to national integrity and communal harmony”. The KUWJ has denied Vijayan’s allegations of misappropriation.
In a 30 June interview, Josy Joseph, one of Kappan’s former editors, also said rivalry had a role to play in his arrest.
“Siddique’s story is also a story of brothers who are traitors,” said Joseph, a journalist and author. “Many charges of the UP police against Siddique were just allegations that were a result of an internal rivalry that emerged within the Delhi unit of the KUWJ.”
Joseph said Kappan is a “symbol of media today [in India]” and was in jail “only because he is a Muslim”.
In Kappan’s arrest, Chekkutty said, the UP police got “a perfect tool” to divert public attention from the “real Hathras issue”, the rape-murder of the young Dalit woman and State hostility towards her family.
“In Siddique Kappan, a person with Muslim name, they (UP government) got what they wanted,” said Chekutty. “Look, now nobody is talking about the Dalit girl of Hathras, or about her family. The UP police got the diversion [of the debate on Hathras] they wanted”.
Journalism Union Affirms Support For Former Secretary
Kappan, as we said, was secretary of the Delhi unit of the Kerala Union of Working Journalists or KUWJ, the largest body of professional journalists in the southern state, when he was arrested by the UP police. In October 2020, a day after his arrest, his organisation had moved the Supreme Court with a habeas corpus petition.
Habeas corpus, Latin for “you must have the body” is a petition that seeks from a government agency or individual the presence in court of someone who is detained, usually to ensure the person’s well being.
However, the day after the KUWJ’s Supreme Court petition, the UP police booked Kappan—and the cab driver and the two Muslim student activists he was traveling with—under the UAPA, allowing them to retain custody.
In a statement released after the Allahabad high court rejected Kappan’s bail plea on 2 August, the KUWJ’s Delhi unit president Prasoon S Kandath and secretary Dhanasumod D said they were “deeply disappointed”. They said they were “hopeful” that the Supreme Court would release Kappan and send a “clear message against misuse of the draconian laws against journalists”.
Vineetha M V, the KUWJ’s new president, said the union offered the full support of its Delhi unit to fight for Kappan’s release. “The KUWJ will continue its efforts for Kappan’s release,” she said. “We have been with Kappan’s family ever since he was arrested, we will continue to stand with them.”
‘It Can Be Anyone Tomorrow’
Kappan’s journalist friends, and at least some other journalists who did not know Kappan before, said they believed that Kappan’s experience contained a message or a threat for them.
Akanksha Kumar, a journalist with the website Newslaundry, said Kappan's case sent “chills down my spine” and that she “can't imagine” what his family and friends must have gone through in the last two years.
Kumar, who reported extensively on the UP police charge sheet against Kappan, said the actions of the UP police Special Task Force (STF) Kappan's case, was “a classic example of how a premiere investigation agency of India's largest state has resorted to misuse of UAPA on the basis of mere suspicion”.
“If it is Kappan today, tomorrow it can be anybody else,” said Prasanth, who said Kappan’s incarceration would “affect the confidence of journalists to practise journalism with honesty, to bring out the truth and to question the wrong deeds of those who are in power”.
Indeed, a number of journalists who knew Kappan, refused to talk to Article 14 for this story, fearing possible reprisal from the State or adverse publicity.
Material For A Book = Subversive Documents
A major allegation against Kappan, according to the UP police, was that he had with him documents on the SIMI, or the Students' Islamic Movement of India, an organisation created in 1977 and banned by the union government in 2001, when a coalition led by the Bharatiya Janata Party was in power.
These documents, said Newslaundry’s Akanksha, who reported about them between October and December 2021, included three freely available booklets on successive bans on the SIMI by UAPA tribunals, published by the advocacy group People's Union for Democratic Rights (PUDR), and a 2012 research paper on the SIMI from Delhi’s premier Jawaharlal Nehru University.
Akanksha said that other than these documents, the charge sheet had nothing else to suggest Kappan’s “link” with the SIMI. Kappan’s latest Supreme Court petition addressed the ‘SIMI-documents’ question.
Kappan said a friend was writing a book on former SIMI leaders and had shared a draft with him. It was for this book that he interviewed some members of parliament formerly associated with the SIMI, after his author friend requested.
A former editor of Kappan, P Koya, confirmed that a book on former SIMI activists had been commissioned.
“Some people I know wanted to write an objective history of the organisation [SIMI],” said Koya, a retired professor, author and PFI member. “I also agreed to the idea, and I assigned one of my friends to write the book on SIMI. He travelled to different states, meeting some of the former leaders and members, including those who are now associated with various political parties.”
Koya said when the author was stuck after writing some chapters, the group decided to find a new writer to continue the work. “Since I knew Kappan as a journalist interested in minority politics, and because he had been based in Delhi for some years and was open to freelance work, I thought he could take up the assignment,” said Koya.
He said he had discussed the idea with Kappan and sent him whatever was already available for the book, to review. “Perhaps, it is this unfinished draft of a book that the UP police are showing as dangerous SIMI documents,” Koya said.
The veteran Muslim activist-author said writing a book was not an “illegal activity”.
The UP police charge sheet against Kappan included his WhatsApp chats with Koya.
Akanksha said these chats “merely comprise a very normal exchange between an editor and a journalist”. The chats took place in 2018, when both Kappan and Koya were colleagues at Thejas.
Akanksha said examination of the charge sheet against Kappan had “redefined” her perception as a journalist “towards the State and how it chooses to deal with those who try and hold it accountable”.
“But as Kappan himself once told reporters outside the court,” said Akanksha. “‘I still have faith in the Constitution’."
(Muhammed Sabith is a journalist and researcher based in Kozhikode. Tarushi Aswani is an independent journalist based in Delhi.)