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Synopsis

While framing charges for rioting, unlawful assembly, and obstructing public servants in discharging their duties against Sharjeel Imam, Safoora Zargar, and others in the Jamia Milia Islamia University Violence case of 2019, the Delhi High Court on Tuesday observed that 'protest by violent means can never be part of democracy'.

A bench of Justice Swarana Kanta Sharma said, “Section 144 CrPC was imposed in the area where they were proceeding i.e. in the New Delhi district as they wanted to go to the Parliament. The students, therefore, knew that they were trying to violate the law by insisting on moving towards that area and breaking barricades and putting the property on fire, pelting stones at the spot of the Jamia area. Protest by violent means can never be part of democracy.”

The court further observed that in a democracy there can be no question of dissent being suppressed or the fundamental right of freedom of expression by peaceful means being infringed, however, at the same time, there is “no place of violent collective action” to register one’s anguish against ideological differences or resistance to a government policy.

Justice Sharma stated that the video analysis of the incident revealed that the acts of resistance being presented as normal by the respondents were not peaceful resistance but violent protest which had turned into riots.

The single-judge bench, therefore, overturned the trial court order that discharged Sharjeel Imam and ten others in the 2019 Jamia Violence case.

The court also framed charges against Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Umair Ahmad, Bilal Nadeem, Sharjeel Imam, Chanda Yadav, and Safoora Zargar under various sections 143(unlawful assembly), 147(Rioting), 149(common object), 186(obstructing public servant in discharge of public functions), 353(assault or criminal force to deter public servant from discharge of his duty), 427(Mischief) of IPC and Section 3(Mischief causing damage to public property) of PDPP Act.

Mohd. Abuzar, Mohd. Shoaib and Asif Iqbal Tanha have been charged under Section 143(member of unlawful assembly) of IPC only.

All the 11 accused have been discharged from rest of the offences mentioned in the chargesheet, since there was not enough material against them to implicate them under the said provisions of law. However, the court said that in case any evidence comes on record against any of the accused persons during the trial regarding the offences they have been discharged of, the trial court may proceed as per law against them.

Justice Sharma in 90 pages order said, asserting one’s right to raise issues in a democratic setup is not a crime in India. Though protesting has “constitutional protection” through the right of freedom of speech and expression and it is essentially subject to “peaceful assembly” and “peaceful association”.

“It is also subject to legal parameters relevant to protest and the right to peaceful assembly like all constitutional rights is subject to “reasonable limits”. Thus, the State can restrict the rights including the right to protest by certain ways without violating the fundamental rights of individuals. A protest cannot be allowed to endanger others, damage property, restrict essential services and such a protest cannot receive constitutional protection. The acts of violence and violent speech that instigates violence and endangers rule of law, damage public property and peace are not protected under the Indian Constitution”, the Judge said.

Though the protesters in a democracy have every right to protest and freedom of expression and to protest against any government policy, however, the court stated, that at the same time, the rights exercised cannot “infringe” the rights of others who public peace and tranquility.

Court further stated that there was prima facie evidence as in the present case from the statement and material collected and the electronic evidence, to recognize that “adequate warning” was given to the protesters from “turning violent” and that their assembly in view of the violence had been “declared unlawful” and it was their “conscious decision” to “remain part of violent mob”.

The court noted that, in the present case, the police was being targeted by pelting stones. “As there is no confusion about rights of the individuals to express themselves and to assemble lawfully for lawful purpose, however, the assembly of such persons cannot be permitted to violate laws of the land or regulations”, the court said.

Court further stated that the beginning of pelting of stones, pushing, kicking and breaking of barricades, and violent insistence on marching to a curfew bound area “marked the beginning of the end for the peaceful protest” for the group of people of the assembly.

Furthermore, the court said that assemblies cannot be aimed at destroying the rights of others to achieve their own, therefore, the right to freedom of peaceful assembly cannot be aimed at destruction of the rights and freedom of others who were not part of that protest. “Though the right of freedom of expression cannot be criminalized, the threat to life of others and public and private property preventing public servants from doing their duty, the actions of violence and damaging property will certainly attract criminal law”, the court added.

Noting the role of internet and social media, the court said that the challenge the law enforcing agency face when “provocative actions and speeches” are delivered on the spot or slogans are raised, violent acts are committed are that they have a tendency to “spread within seconds” threatening the law and order situation in the concerned area.

“In the present era of independent social media, in case the violent mob would have been allowed to march to the streets of Delhi to the Parliament which was a curfew bound area, there was apprehension that more persons could have gathered, endangering the law and order situation in Delhi”, the court added.

Remarks against Investigating Agency

On this aspect, the court stated that the State is also aggrieved by the observations and remarks passed by the Trial Court in the impugned order while discharging the 11 accused persons.

Noting that none of the counsels for the respondents havd any objections if the said remarks are “expunged” from the record, the court ordered, “Keeping in mind the aforesaid discussion, the remarks as reproduced in para number 133 above are thereby expunged from paragraph number 44, 45, 47 and 48 of the impugned order.”

While expunging the remarks, the court stated that such “scathing remarks or observations” pointing out lacunae in investigation can surely be made in certain cases, where the same is totally essential for the decision of the case, but should have been avoided at the present stage by the trial court.

The expunged paras include the following remarks:

Marshalling 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 commission of the offence, but surely managed to rope the persons herein as scapegoats.

The prosecution has ex face been launched in a perfunctory and cavalier fashion against the abovementioned persons, except qua Mohd Ilyas@Allen. Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest.

Else, it should have abstained from filing such an ill-conceived chargesheets qua persons whose role was confined only to being a part of a protest.

Needless to say, the investigative agency is not precluded from conducting further investigation in a fair manner, with the leave of the Court, in order to bring to book, the actual perpetrators, with the adjuration not to blur lines between dissenters and rioters, and to desist from henceforth arraigning innocent protesters.”

Accordingly, the court disposed of the present petition. 

Notably, on March 23, the court 'reserved orders' in the plea. While reserving orders, Justice Sharma had noted that none of the respondents had an objection to “expunging” certain remarks made by the Trial Court against the Delhi Police.

Trial Court Order:

Additional Sessions Judge (ASJ) Arul Varma of the Saket Court, had emphasized that “dissent is simply an extension of the invaluable fundamental right to free speech and expression under Article 19 of the Constitution of India” while discharging Imam, and others in the case.

“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 judge had said.

While discharging the 11 accused persons, the court had pulled up the Delhi Police and 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 had added.

The judge in the 32-page order had 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".

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 Trial court discharged Sharjeel Imam, Asif Iqbal Tanha, Sarfoora Zargar, Mohammed Abuzar, Umair Ahmad, Mohammed Shoaib, Mahmood Anwar, Mohammed Qasim, Mohammed Bilal Nadeem, Shahzar Raza Khan, Chanda Yadav.

All the accused persons were charged with offences under Sections 143, 147, 148, 149, 186, 323, 353, 332, 333, 308, 341, 427, 435, 120B, and 34 of the Indian Penal Code.

Case Title: State v. Mohd. Qasim & Ors.

Statue: The Indian Penal Code, The Constitution of India, and the Code of Criminal Procedure; The Prevention of Damage to Public Property Act