Crushing the right to dissent

Civil society organisations express solidarity with JNU women students arrested under the UAPA in connection with the February violence in North East Delhi and demand their immediate release.

A protest outside Jamia Millia Islamia against the Citizenship (Amendment Act) in New Delhi on January 1.

Mahavir Narwal was the epitome of stoicism as he waited to deposit the surety amount for his daughter’s bail at the Karkardooma Court premises in Delhi. He was hoping to complete the formalities and reach the Patiala House Court in another part of the city to catch a glimpse of his 32-year-old daughter Natasha Narwal when she was produced before the duty Magistrate via videoconferencing.

Mahavir Narwal’s frail frame belied his strength of character, which he was confident he had passed on to his children. A senior scientist in Haryana Agricultural University, Hisar, he had had his share of public life before retirement. “I am very proud of Natasha. I know that the charges [of murder and conspiracy] against her are baseless. Whenever this ends, she will emerge stronger. She will chart her own path and I will always be there for her,” he told Frontline .

She and her friend Devangana Kalita, both students of Jawaharlal Nehru University (JNU) and founding members of the feminist collective Pinjra Tod, were arrested on May 23 in connection with the February violence in North East Delhi. In Rohtak, the Students Federation of India (SFI), the Sarv Karmachari Sangh, the All India Democratic Women’s Association (AIDWA), the Centre of Indian Trade Unions (CITU), the Kisan Sabha, Nagrik Manch and Abhibhavak Sangh demanded their release. They have sent a memorandum to the President demanding the dropping of charges under the Unlawful Activities (Prevention) Act (UAPA) against Natasha Narwal and the release of the young women immediately.

“We hope there will be a positive response to our letter,” said AIDWA’s Jagmati Sangwan, adding that the charges were “entirely false, baseless and concocted. Pinjra Tod was peacefully protesting against Citizenship Amendment Act [CAA] and the National Register of Citizens [NRC]. There is absolutely no basis for charging them under stringent laws.” After meeting them outside Mandoli Jail, she said, “Despite the odds stacked against them, the girls are in high spirits. Seeing their firm resolve and strength, I feel energised.”

Similar sentiments emerged for Devangana Kalita from Assam, her home State. Former Chief Minister Tarun Gogoi wrote to Union Home Minister Amit Shah, requesting the immediate release of the girls. He said that the students had not committed any offence, that they had participated in a peaceful agitation and had not engaged in or incited any violence.

He said the Constitution gave everybody the right to expression, and the students had merely exercised their fundamental right. “You know yourself that agitations are going on all over the country against the CAA, which violates the Constitution and the Assam Accord…. This is nothing but political vendetta and an attempt to suppress fundamental rights,” he said.

The Leader of the Opposition in the Assam Assembly, Debabrata Saikia, said, “Once Chief Minister Sarbananda Sonowal was a student leader in Assam and had participated in many students movements but now he is mum on the arrest of the Assam girl. I request him to intervene and take immediate steps for the release of the girls.”

Before their arrest the two girls faced a three-hour-long interrogation by the Delhi Police’s Special Cell at their homes. Their laptops and phones were seized. The two joined a growing list of girls who have been arrested in connection with the February violence. Gulfisha, an MBA student, has been behind bars since April 9 on charges of sedition, and a pregnant Safoora Zargar, member of the Jamia Coordination Committee, has been in Tihar jail for the past one and a half months. Former Congress municipal councillor Ishrat Jahan, who was charged under the UAPA, was granted bail for 10 days to get married on June 12.

Pinjra Tod was part of the sit-in protest held against the CAA/NRC under the Jafrabad metro station flyover. The protesters were divided as to whether a road block was a good idea in that part of the city. But since the local women wanted to stage a sit-in, Pinjra Tod went ahead disregarding the voices of caution. At least three other sit-in protests were going on in North East Delhi for a few months.

The two Pinjra Tod girls were arrested following the first information report (FIR 48/20) registered by the Jafrabad police on February 24. The previous day BJP leader leader Kapil Mishra had threatened to have the protesters cleared if the police did not act. The girls were charged under the Indian Penal Code (IPC) Sections 186 (obstructing public servant in discharge of public functions), 341 (wrongful restraint), and 353 (assault or criminal force to deter public servant from discharge of his duty), besides Sections 147, 188, 283 and 34.

On May 24, the Duty Metropolitan Magistrate Ajeet Narayan granted them bail after a special hearing at Mandoli Jail. He observed that prima facie , the offence under Section 353 (the only section for non-bailable offence in that FIR) was not maintainable.

“Facts of the case reveal that the accused were merely protesting against the NRC and the CAA and the accused did not indulge in any violence. Also, the accused have strong roots in society and they are well educated. Accused are ready to cooperate with the police regarding the investigation,” he said.

Taking the pandemic situation into consideration, he denied police custody. But on hearing his oral observation, the Special Investigation Team of the Crime Branch immediately produced a second FIR (50/2020, dated Februry 26) with much more serious offences, namely, Sections 302 (murder), 332, 307 (attempt to murder), 427, 120 B (criminal conspiracy), 188 of the IPC, besides Sections 25, 27 of the Arms Act, 1959, and Sections 3, 4 of the Prevention of Damage to Public Property Act (PDPPA), 1984.

The Crime Branch sought 14 days’ custody on the basis of the second FIR. Advocates Adit Pujari, Tusharika Mattoo and Kunal Negi opposed the custody application stating that their clients had been implicated in the second FIR in a “mala fide” manner. Finally, custody of two days was granted, which was extended on May 26. Thereafter, they were kept in Tihar Jail under judicial custody. In addition to this, Natasha Narwal was charged under the UAPA and Devangana Kalita had a third FIR registered against her in the Daryaganj police station, in which she got bail.

The multiple cases filed against the accused in order to obstruct their release on bail followed the pattern of some of the other cases relating to the North East Delhi violence. When Safoora Zargar was granted bail in the Jafrabad protest case, she was re-arrested in a riot-conspiracy case. At her bail hearing, when the judge pointed to a lack of clarity about her exact role, she was charged under the UAPA.

When the Additional Sessions Judge (ASJ), Shahdara, granted Ishrat Jahan bail on March 21, another FIR was registered against her the same day under various provisions of the IPC, the UAPA, the Arms Act and the PDPPA.

It was only later that ASJ Dharmender Rana of the Patiala House Court granted her interim bail on her plea, which said: “She was merely a supporter of the ongoing peaceful protests and had been falsely implicated in the said case. She had the fundamental right to dissent against any unreasonable measure of the government under Article 19(1)(a) and (1)(b) of the Constitution.”

A similar pattern was seen in the case of the Popular Front of India members Parvez Alam, Mohd Ilyas and Mohd Danish. Metropolitan Magistrate Prabh Deep Kaur granted them bail and pulled up the Investigating Officer (I.O.) for failing to offer bail as it was a “settled principle in bailable offences, that the I.O. is duty bound to offer bail to the accused persons at the first instance”.

Soon after, the case was transferred to the Special Cell, which arrested Parvez and Ilyas under non-bailable charges of murder and attempt to murder. They have now been accused of a larger conspiracy of “funding the CAA protests and planning for the violence in NE Delhi”.

While the police have not shared details of their investigations, reports submitted to the Home Ministry by two non-governmental organisations—Call for Justice and Group of Intellectuals and Academicians—provide clues on the direction they are taking.

The reports (see box) blame the February violence on the PFI, Pinjra Tod, Umar Khalid, the Jamia Coordination Committee and others arrested until now by the investigating agencies. The Jafrabad/Delhi Police are handling cases of rioting, while the Crime Branch is looking at murder cases. The Special Cell steps in for cases under the UAPA or to handle the accused in the overarching conspiracy. Activists say the investigations are following the script drafted by the NGOs.

The lower court, however, pulled up the Delhi Police during the hearing for custody of Jamia student Asif Iqbal Tanha. ASJ Dharmender Rana observed in a handwritten ruling on May 27: “Perusal of the case diary reveals a disturbing fact. The investigation seems to be targeted only towards one end. Upon enquiry from Inspectors Lokesh and Anil, they have failed to point out what investigation has been carried out so far regarding the involvement of the rival faction.” Tanha was sent to judicial custody for 30 days.

Again, while granting bail to a person accused of burning a shop in the violence, Justice Anup Jairam Bhambhani of the Delhi High Court held that “sending a message to society” could not be a basis for denying bail if the court was otherwise convinced that judicial custody of the accused would not be needed for the purpose of investigation and prosecution.

He said: “The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the state demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system.”

Commenting on the police allegations of overarching conspiracy, Sarim Naved, lawyer for the Jamia student Meeran Haider said, “Right now it is just a police theory. To go from conspiracy to actual crime, there has to be a chain of connecting evidence. The police say they have “secret information”. But so far they have not revealed what this secret information is. The case cannot be based solely on theory. Besides, how far do you stretch the principle of provocation? If it is truly expanded then all the lynching cases in the country will have to be looked at again.”

Charges against 3,304 persons

So far, 3,304 people have been charged with fanning the February communal violence in which 53 lives were lost and 226 houses and 487 shops were damaged. G. Kishan Reddy, Minister of State for Home Affairs, said 763 cases, including 51 under the Arms Act, had been registered. As per civil society estimates, 800 more persons were picked up during the lockdown.

Condemning the arrests, Campaign Against State Repression, a collective endorsed by 36 organisations, including the AISA, the SFI, United Against Hate, Bhim Army, the National Alliance of People’s Movements, Rihai Manch, Saheli and Women Against Sexual Violence and State Repression, objected to the criminalisation of the right to protest.

Jignesh Mewani, Dalit activist and Member of the Legislative Assembly from Vadgam in Gujarat, said the latest series of arrests of students activists was “vendetta politics of the worst nature” and indeed a “conspiracy by the government” to silence its critics. He said, “It’s a joint struggle for people like Khalid Saifi, Kafeel Khan, Gautam Navlakha, Anand Teltumbde and Akhil Gogoi. What we are witnessing is the replication of the Bhima Koregaon model where media outlets dear to the establishment ran consistent programmes on TV and mobilised opinion against people who were the victims in the violence.”

Kanhaiya Kumar, former president of the JNU Students Union and leader of the Communist Party of India, said that when we should have been fighting the COVID-19 together, it was extremely unfortunate that the government was fighting against students and youth. “When people accused of heinous crimes are being given bail, then what is the urgency of accusing students and throwing them behind bars?”

Pinjra Tod, founded in 2015, started as a movement against curfews in girls hostels and gradually emerged as a collective taking up causes relating to women’s emancipation. Devangana Kalita is an MPhil student at the Centre for Women’s Studies, and Natasha Narwal is doing her PhD at the Centre for Historical Studies in JNU.