hidden image

2019 Jamia Case: Dissent, Free Speech & Protests

Joseph Maliakan Joseph Maliakan
27 Feb 2023
The court is duty bound to lean towards an interpretation which protects the rights of the accused, given the power disparity between them and the state machinery.

The February 4 order of Additional Sessions Judge Arul Verma of the Saket Court discharging JNU student Sharjeel Imam and student activists Safoora Zagar, Asif Iqbal Tanha and eight others in the December 2019 Jamia violence case should be etched in golden letters in the hearts of all freedom-loving people everywhere.

Verma’s discharge order is very significant because it will have a major salutary effect on how the innumerable cases filed under the draconian Unlawful Activities (Prevention) Act, 1967 (UAPA) and various sections of the Indian Penal Code (IPC) without proper evidence or investigation are dealt.

The case pertains to the incidence of violence that erupted at Jamia Millia Islamia University in December 2019 after a clash between police and the people protesting against the Citizens Amendment Act (CAA).

The FIR alleged offences of rioting and unlawful assembly under several sections of the IPC. Ironically, cases were registered only against the protesting students and no effort was made to book policemen who entered the Jamia campus and brutally beat up even those in the university library.

Discharging the accused, Verma said “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.”

ASJ Verma further said that, as laid down by the Supreme Court in P. Vijayan vs the State of Kerala, the court is duty bound to lean towards an interpretation which protects the rights of the accused, given the power disparity between them and the state machinery.

In fact in his concluding remarks, which are most significant, Verma said to safeguard the citizens’ fundamental right to freedom of speech and assembly, in all its actions the State was obliged to draw a clear line between dissent and insurrection, especially in the context of protests like the present one where the prosecution sought to blur them.

“Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with,” ASJ Verma pointed out.

In its detailed order the court observed that the police was unable to apprehend the “actual perpetrators” and “surely managed to rope them (accused) as scapegoats in the matter.” The prosecution was also severely indicted for filing “ill-conceived chargesheets.”

Additional Sessions Judge Arul Verma said that the police have “arbitrarily chosen” to array some people from the protesting crowd as accused and others as police witnesses. This “cherry picking” is absolutely detrimental to the precept of fairness, the court said.

The court further observed that mere presence at the protest site without overt acts cannot lead to implication as accused, and said that the prosecution has ex facie been launched in a “perfunctory and cavalier fashion” against them. To allow such persons undergo rigmarole of long drawn trial does not augur well for the criminal justice system of our country, Judge Verma added.

“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 the citizen’s conscience,” the order said.

In the Jamia violence case, the police had originally filed a chargesheet only against Mohammad llyas on April 21, 2020. This was then followed by a supplementary chargesheet against 11 other accused persons. A third supplementary chargesheet was filed as recently as February 1, 2023. The prosecution tried to establish that the witnesses had identified the accused persons on the basis of some photographs.

In this context the court observed that the Delhi Police failed to adduce fresh evidence and rather sought to present old facts in the garb of “further investigation” by filing supplementary chargesheets.

“In the present case, it has been most unusual of the police to file not one chargesheet but three supplementary chargesheets, with really nothing new to offer. This filing of a slew of chargesheets must cease, else this juggernaut reflects something beyond mere prosecution, and would have the effect of trampling the rights of the accused persons,” the order said.

It further said that there were no eyewitnesses who could substantiate the version of the police that the accused were in any way involved in the commission of the offences. It said that no test identification parade was held until filing of the third supplementary chargesheet and that the photographs and videos only demonstrate that the accused were standing behind barricades.

"There is nothing on record to even prima facie suggest that the accused herein were part of some riotous mob… Surely prosecution cannot be launched on the basis of conjectures and surmises and chargesheets definitely cannot be filed on the basis of probabilities,” the order said.

The court also pointed out in the present case the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence, and then only it should have embarked on “galvanizing the judicial system” against the accused. Else it should have abstained from filing such ill-conceived chargesheets against persons whose role was confined only to being part of a protest.

Recent Posts

"Traditional" Christmas celebrations fail to highlight the pain, rejection, and humility surrounding Jesus' birth. We must question our focus on festive traditions. Let us recognise modern-day margina
apicture M L Satyan
23 Dec 2024
The Church, by any measure, cannot fully provide compensatory justice to Dalit Christians, who have been forced to live as outcastes for thousands of years, but it has the capacity to negotiate and pr
apicture Dr Anthoniraj Thumma
23 Dec 2024
The Artha??stra, which he is supposed to have written, was actually composed by many persons over many decades. In any case, Chanakya's doctrines did not help India. Every foreigner could easily captu
apicture A. J. Philip
23 Dec 2024
Christmas now revolves around Santa, commerce, and grand celebrations, sidelining its core message of love, forgiveness, and compassion. Christmas urges generosity, transcending divisions, and fosteri
apicture Jacob Peenikaparambil
23 Dec 2024
Seventy-five years after adopting the Constitution, India faces a stark disconnect between its ideals and practices. Ambedkar's vision of justice and equality is overshadowed by systemic failures, cas
apicture Jaswant Kaur
23 Dec 2024
, we need to understand that the Constitution-making process was the biggest effort of reconciliation in Indian society. Baba Saheb Ambedkar understood this very well, as did the Congress leadership a
apicture Vidya Bhushan Rawat
23 Dec 2024
Christmas symbolises humanity's relentless search for truth. It prompts and unites human desires for metaphysical understanding, transcending materialism and relativism. Embracing truth offers purpose
apicture Peter Fernandes
23 Dec 2024
Tavleen Singh critiques the Taliban's misogyny but overlooks parallels between religious fundamentalism and Hindu nationalism. Both enforce oppressive norms, targeting women and minorities, cloaked as
apicture Ram Puniyani
23 Dec 2024
Donald Trump and Narendra Modi are adept at divisive rhetoric, authoritarianism, rewriting history and exploiting their nations' fault lines. Both have been fuelling communal and cultural divides whil
apicture Mathew John
23 Dec 2024
Listen to choirs this Christmas season, but even as you do, take back with you a deeper lesson than the words the songwriters wrote, realising that choral harmony could be a wonderful way to live as a
apicture Robert Clements
23 Dec 2024