This article is written by Vanya Verma from Alliance University, Bengaluru. This article talks about the cases involving Ashwani Upadhyay and Umar Khalid.

Introduction

Ashwini Upadhyay, former BJP spokesperson was arrested by the Delice Police in connection to a case in which anti-Muslim chants were uttered during a protest at Jantar Mantar. On Wednesday (August 11), a Delhi court granted bail to him.

Umar Khalid (born Syed Umar Khalid) is an activist and former leader of the Democratic Students’ Union (DSU) at Jawaharlal Nehru University. He is accused under the Unlawful Activities (Prevention) Amendment Act (UAPA) after reportedly being implicated in the sedition case at Jawaharlal Nehru University. Khalid is also a part of the United Against Hate (UAH) campaign, which began in July 2017 in reaction to a string of lynchings. He is still in judicial custody. 

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Let us further understand both cases in detail.

The Ashwani Upadhyay case

Ashwini Upadhyay (a BJP leader and Supreme Court lawyer) and five other people were arrested by Delhi police on Sunday for their suspected role in chanting anti-Muslim slogans at Jantar Mantar at a gathering in support of a uniform civil code.

Preet Singh, Deepak Singh, Deepak Kumar, Vinod Sharma, and Vinit Bajpai were other suspects, according to Deputy Commissioner of Police (New Delhi) Deepak Yadav. Gajendra Chauhan, a BJP leader, was also there and was spotted on the podium. The event was attended by hundreds of individuals.

“They were all detained in a late-night operation, and legal documentation was prepared before their arrest. At roughly 3 a.m., Upadhyay arrived at Connaught Place police station and joined the investigation,” a senior police officer told the Indian Express. The arrest was made from various parts of the Delhi-National Capital Region and was to appear before the magistrate on August 10, according to police.

“After an FIR was filed at Connaught Place Police Station in connection with aggressive sloganeering during a programme conducted near Bank of Baroda, six individuals were arrested,” Yadav added.

“The protest was organised by Upadhyay. He was denied permission to hold the demonstration. When such unlawful behaviour occurs during a gathering, the organiser of the gathering, as well as individuals who were present, are held accountable,” another senior police officer told PTI.

The case was filed under Indian Penal Code Sections 188 (disobedience to a duly issued public servant’s order), 153 A (promoting enmity between different groups based on religion, race, place of birth, residence, language, and other factors, and doing acts prejudicial to the maintenance of harmony), 269 (negligent act likely to spread infection of disease dangerous to life), and 270 (malignant act likely to suffocate a person).

Police sources informed NDTV on August 10 that raids are taking place all across the city. On Monday, some people chastised the Delhi police for filing an FIR against “unknown persons,” even though many of the accused were visible on the event’s video footage.

The event was reportedly held without police approval, but no action was taken until Sunday evening, according to the Indian Express, and the gathering was permitted to continue. People can also be seen in images and recordings of the event not wearing face masks, in violation of COVID-19 policy. Crowds at the event also harassed a reporter from the YouTube channel ‘National Dastak,’ attempting to force him to chant ‘Jai Shri Ram.’ He was labelled a “jihadi” when he refused.

On 9th August Upadhyay stated that the chants were raised after the formal ceremony had ended and that he didn’t know who the people in the videos were. He also stated that the Jantar Mantar event was not organised by him. “I am not affiliated with the Save India Foundation Trust. Mr RVS Mani, Mr Firoz Bakht Ahmed, and Mr Gajendra Chauhan were among the guests. We arrived at 11:00 a.m. and left at 12:00 p.m. These thugs are people I’ve never met”. In a statement to the police, he added, “I wish to meet you tomorrow morning to give my written statement.”

Upadhyay had previously tweeted multiple images and videos from the event, but they appear to have been removed from his Twitter account. The demonstration was led by Upadhyay, according to Shipra Srivastava, media in charge of the ‘Bharat Jodo Aandolan.’ According to PTI, he has denied any ties to individuals who have chanted anti-Muslim slogans.

The National Commission for Minorities has issued a warning to the Delhi Police Department. The National Commission for Minorities sent a notice to Delhi’s Deputy Commissioner of Police on Monday, alleging anti-Muslim slogans were uttered during a protest at the Jantar Mantar and requested that the official information of the action taken be notified to the Commission.

The panel took suo motu notice of the news, as directed by NCM vice-chairman Atif Rasheed. “The Muslim community has suffered as a result of this. You are required to appear in the commission on October 8, 2021, at 12 p.m.,” it stated.

The commission had asked the Deputy Commissioner of Police to provide information on what actions have been taken against those who have raised such slogans, whether any arrests have been made, and, if so, what sections the suspects have been booked under. The Commission also requested information from the deputy police commissioner, including who gave authorization for the event and what steps were done to prevent similar situations in the future.

In a letter to home minister Amit Shah and Delhi Police Commissioner Rakesh Asthana, Jamiat Ulema-e-Hind president Maulana Mahmood Madani sought strong punishment against the guilty. In addition, at a makeshift camp near Jantar Mantar, a delegation led by Maulana Hakeemuddin Qasmi, the Jamiat’s General Secretary, met with Jaspal Singh, the Joint Police Commissioner, New Delhi Range, and Deepak Yadav, the DCP, and gave over a copy of the letter to them. According to the report, the hate-filled video was widely circulated and shared on social media sites and it had harmed Muslims and peace-loving people from all walks of life.

On August 11, Delhi Court granted bail to BJP leader and Supreme Court lawyer Ashwini Upadhyay, who was arrested in connection with the use of anti-Muslim chants during a demonstration at the Jantar Mantar. Upadhyay claimed that he had been framed by the Delhi police.

Upadhyay was represented by four prominent lawyers before the trial court on Wednesday, including Supreme Court Bar Association president Vikas Singh, as well as Sidharth Luthra, Gopal Shankarnarayan, and Ashwani Dubey. Upadhyay was granted relief by Metropolitan Magistrate Udbhav Kumar Jain on the condition that he post a bond of Rs 50,000. 

The judge mentioned in the order, “there is nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the accused as far as the offence under Section 153A (promoting enmity between different groups on grounds of religion, race, etc) of the IPC is concerned, except for mere assertion”.

Hundreds of people turned out for the ‘Bharat Jodo Andolan’ demonstration on Sunday, August 8. Bharat Jodo Aandolan media in-charge Shipra Srivastava said the rally was led by Upadhyay but denied any ties to those who shouted anti-Muslim slurs.

Soon after his release, Upadhyay retweeted messages of support for him from BJP heavyweights like R.P. Singh, as well as rightwing Hindutva campaigners like Suresh Chavhanke. Upadhyay also uploaded a Twitter video reiterating his call for a uniform civil code, which he voiced during a protest on Sunday that resulted in violent threats to Muslims in the form of chants. He claimed he was framed by police and has no ties to the protest organisers or sloganeers.

During the hearing, the Court also questioned the public prosecutor, who decided that there was nothing in a video of the protest that could be used against the defendants. The court noted that “there was no risk that the accused would abscond” in granting bail. “There is no question that a conspiracy is being formed behind closed doors, and that the current probe is in its infancy. That, however, does not entail that a citizen’s rights should be restricted based on mere allegations and suspicions, according to the court.

The arrest, according to lawyer Vikas Singh, was a “blatant abuse of power” by the police. “Police cannot arbitrarily apprehend anyone,” he added, adding that it was an “admitted fact” that the accused was present at the scene in the morning rather than at the time of the claimed event involving hate speech. The defence attorney went on to say that the FIR was filed late and that Upadhyay was being “illegally incarcerated.” 

The public prosecutor, who opposes the application, claimed that the demonstration was held during a pandemic when big meetings are prohibited to prevent the spread of COVID-19 and that the gathering was also held without permission. Further, he said that “the accused’s meeting was an unlawful assembly in which he actively participated knowing the common goal of the gathering.”

The prosecution’s argument about the epidemic was dismissed by the Court. It said, “it is a terrible moment for everyone, and strong action should be taken against those who violate the guidelines; nonetheless, the offences, as far as the violation of these guidelines is concerned, is bailable in nature, and can be dealt with by the trial court on the merits”.

It ordered Upadhyay to comply with ongoing investigations and to appear before the investigating officer when requested. It also told the defendants not to leave the country without permission from the court and to “carefully appear at each stage of the proceedings before the concerned court so as not to cause any hindrance or delay in their progress.”

The accused was sent to judicial custody considering that his bail application was pending. Following the news of Upadhyay’s release, some social media users remarked on the ease with which the advocate had obtained bail, contrasting it with the plight of activists, comedians, and journalists who remain imprisoned.

The Umar Khalid case

On February 9, 2016, Umar Khalid and nine other students, including then-JNUSU president Kanhaiya Kumar, were charged with sedition for allegedly organising a protest against the “judicial death” of Parliament attack convict Afzal Guru and Maqbool Bhat at the Jawaharlal Nehru University. Anti-India slogans were allegedly chanted at the occasion.

After Kanhaiya Kumar was arrested on allegations of “criminal conspiracy” and “sedition” under Sections 124A and 120B of the Indian Penal Code, Khalid, a former member of the Democratic Students Union, reportedly vanished from the campus. He appeared on several media stations in the following days, defending the event, and was arrested after resurfacing on campus on February 23. A sessions court, however, granted him bail.

On July 6, 2018, JNU’s high-level inquiry committee affirmed Khalid’s expulsion and fined Kanhaiya Kumar Rs 10,000 in connection with the campus event. In 2016, a JNU tribunal recommended Khalid and two other students be expelled, as well as the imposition of a fine on Kumar.

Khalid, however, filed a court appeal to the decision, and Justice Siddharth Mridul, who was hearing the case, instructed JNU not to take any coercive action against Khalid until the next date of hearing, which is August 16.

“An administration that has been operating under the directives of the ruling BJP and RSS has never been in a position to undertake this investigation impartially. After the JNU panel confirmed his rustication, Khalid remarked on Facebook, “The court has consistently uncovered flaws in the enquiry process and has vindicated our apprehensions.”

However, a new feud arose two weeks ago after the management of Jawaharlal Nehru University purportedly refused to accept Khalid’s PhD application. “This is a whole other level of vengeance. I’m not going to pay the fine, I will contest this further,” Khalid said, whose PhD in Jharkhand’s Adivasis was signed by all authorities save the Chief Proctor and Finance Officer. Khalid was a PhD student at JNU for Historical Studies JNU.

Khalid has been a vocal critic of the BJP government, launching various attacks on Prime Minister Narendra Modi. “The Modi myth is fading,” the JNU student leader declared at the Yuva Hunkaar Rally on Parliament Street in New Delhi this year. Prime Minister Modi’s balloon has burst. Youth, students, farmers, labourers, and minorities deserve credit for playing the role of resistance that was missing inside the Parliament.”

Khalid also spoke out about the assassination of writer Gauri Lankesh, saying that bullets will not quiet her beliefs. “I am outraged and disturbed by Gauri Lankesh’s assassination, who was a prominent critic of Hindutva fascist forces. She was more than a journalist to me. He described her as a “strong supporter of the JNU movement.”

Khalid’s arrest in connection to communal clashes in North-East Delhi

Khalid was detained on September 13, 2020, in connection with communal rioting that erupted in northeast Delhi in February 2020, as violence between supporters and opponents of the Citizenship (Amendment) Act escalated out of control, killing at least 53 people and injuring over 700 others.

Khalid was granted bail in another linked case (over riots in the Khajuri Khas region) on April 16, although he has been detained in Tihar Jail on Unlawful Activities Prevention Act (UAPA) conspiracy accusations. Several additional student leaders and activists in the case have been charged under the anti-terror law’s provisions.

The current case, according to police, is part of a bigger conspiracy that was registered on March 6, 2020. Other students from Jawaharlal Nehru University, including Natasha Narwal and Devangana Kalita, Jamia Coordination Committee members Safoora Zargar and Asif Iqbal Tanha of Jamia Millia Islamia, former Aam Aadmi Party councillor Tahir Hussain, and others had been charged under the UAPA. Tanha, Kalita, and Narwal Narwal were recently granted bail in the same matter by the Delhi High Court.

More than 750 cases had been lodged concerning the violence in northeast Delhi, with over 250 charge sheets filed so far.

Former JNU student Umar Khalid’s bail application in the UAPA case against him in connection with the Northeast Delhi riots was denied by the Delhi Police.

Following the Delhi Police’s submission, Additional Sessions Judge Amitabh Rawat adjourned the hearing in Khalid’s bail application until August 7 on the request of his lawyer, Trideep Pais, who received the prosecution’s reply only on the morning of 28th July 2021.

When responding to Khalid’s bail request, Additional DCP Alok Kumar (Special Cell) told ASJ Rawat that the case was still being investigated. “The applicant’s application has no merits, as revealed and proved before this Court by reference to the charge-sheet presented before this court, and the prosecution does not wish to file a lengthy reply to the present application. By referring to and relying on the charge-sheet presented before this Court, the prosecution will demonstrate the “Prima facie” case against the applicant,” the Additional DCP said.

In their response, the police also stated that three Special Leave Petitions have been filed with the Supreme Court and that until they are decided, neither party can rely on the HC verdict. Natasha Narwal, Devagana Kalita, and Asif Iqbal Tanha, three student activists arrested under UAPA, were recently granted bail by the Delhi High Court.

Khalid “grudgingly accepted the idea of India in 2016, with a plan to break up India in 2020 where all relations were based on the concept of Ummah, with total decimation of secular, national identities,” according to a supplementary charge sheet filed by the Delhi Police in the Northeast Delhi riots case.

Conclusion

The cases involve different angles and the charges imposed against Umar Khalid are more stringent compared to Ashwani Upadhayaya’s case. Though both the cases involved hate speech one of them has been granted bail by simply denying all the allegations made against him despite proof available through the videos that are widely circulating in social media currently while the other, Umar Khalid is still under judicial custody. 

References

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