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Synopsis

Emphasizing that “dissent is simply an extension of the invaluable fundamental right to free speech and expression under Article 19 of the Constitution of India”, a Delhi Court on Saturday discharged Sharjeel Imam, Asif Iqbal Tanha, Sarfoora Zargar, and 8 others in connection with the Jamia Milia Islamia University Violence of 2019.

“Dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained. It is therefore a right which we are sworn to uphold”, the court said.

While discharging the 11 accused persons, Additional Sessions Judge (ASJ) Arul Varma of the Saket Court said, “The police were unable to apprehend the actual perpetrators behind the commission of the offence, but surely managed to rope the persons herein as scapegoats”.

“Investigating agencies should have incorporated the use of technology, or have gathered credible intelligence, and then only should have embarked on galvanizing the judicial system qua the accused herein…It should have abstained from filing such an ill-conceived chargesheets qua persons whose role was confined only to being part of a protest”, the Judge added.

The court, however, framed charges against one namely, Mohd. Ilyas@ Illen. He was in the newspaper photographs where he was seen hurling a burning tyre. An overt act had been ascribed to him, and the same was duly identified by a complainant and some other police witnesses. Accordingly, the court listed the matter for framing of charges against him on April 10.

The FIR, in this case, was filed in connection with a protest held by students and residents of Jamia Nagar against the Citizenship (Amendment) Bill.

The ASJ also quoted Mahatma Gandhi in the 32-page order, “Conscience is the source of dissent, asserts Gandhi”. He stated that "when something is repugnant to our conscience, we refuse to obey it. This disobedience is constituted by duty and it becomes our duty to disobey anything that is repugnant to our conscience".

He also quoted Chief Justice of India D Y Chandrachud’s observation in an order that:

“The destruction of spaces for questioning and dissent destroys the basis of all growth — political, economic, cultural and social. In this sense, dissent is a safety valve of democracy”.

"The subtext is explicit i.e. dissent has to be encouraged not stifled. However, the caveat is that the dissent should be absolutely peaceful, and should not degenerate into violence," the judge said.

The ASJ added that allowing persons charged to go through the rigmarole of a lengthy trial does not augur well for our country's criminal justice system.

He further stated that such police action is harmful to the liberty of citizens who choose to exercise their fundamental right to assemble and protest peacefully.

Furthermore, he said, “The desideratum is for the investigative agencies to discern the difference between dissent and insurrection. The latter has to be quelled indisputably. However, the former has to be given space, a forum, for dissent is perhaps reflective of something which pricks a citizen’s conscience”.

The Judge said, “Some anti-social elements within the crowd created an environment of disruption and did create havoc, however, the moot question remains: whether the accused persons herein were even prima facie complicit in taking part in that mayhem? The answer is an unequivocal ‘no’.Marshaling the facts as brought forth from a perusal of the chargesheet and three supplementary chargesheets, this Court cannot but arrive at the conclusion that the police were unable to apprehend the actual perpetrators behind the commission of the offence, but surely managed to rope the persons herein as scapegoats".

Conclusively, the court ordered, “Considering the fact that the case of the State is devoid of irrefragable evidence, all the persons charge-sheeted barring Mohd Ilyas@Allen are hereby discharged for all the offences for which they were arraigned. They be set at liberty, if not wanted in any other case.”

Case Title: State v. Mohd. Ilyas @Illen & Others.