A Delhi court on Saturday refused to grant statutory bail to student activist Sharjeel Imam, who was arrested in January 2020 under the Unlawful Activities Prevention Act (UAPA) for allegedly making inflammatory speeches during the protests against the Citizenship Amendment Act (CAA) and the National Register of Citizenship (NRC).

The order was pronounced by Additional Sessions Judge Sameer Bajpai of Karkardooma court.

Imam was arrested on January 28, 2020 on sedition charge for allegedly delivering provocative speeches in Delhi’s Jamia area and Aligarh Muslim University (AMU) during the anti-CAA protests.

The trial court had rejected his first bail application in this case in July 2022.

The activist contended in his petition that he had already spent four years in jail out of the maximum sentence of seven years and was, therefore, eligible for statutory bail.

He said the offence of sedition has been kept in abeyance by the Supreme Court and the UAPA provisions invoked against him did not carry more than seven years sentence.

The Counsel representing the Delhi Police contended that the punishment for the offences invoked against Imam should be considered cumulatively not concurrently.

The Delhi High Court will hear on March 8, a petition filed by Imam challenging the order framing sedition and UAPA charges against him in the case.

Earlier on January 30, the Delhi High Court had ordered the trial court to decide and pronounce its judgement on the statutory bail petition of Imam by February 17.

Imam was booked under FIR 22 of 2020 registered by Delhi Police’s Special Branch. Initially, the case was lodged for the offence of sedition, Section 13 of UAPA was invoked later.

On Tuesday, a division bench of Justice Suresh Kumar Kait and Justice Manoj Jain disposed of Imam’s plea seeking statutory bail in the case by mentioning that his application is already pending adjudication before the trial court.

Consecutively, the bench ordered the trial court to decide on the application within 10 days from the next date of hearing on February 07. The bench added that in case Imam is denied bail, then he has the right to file a fresh appeal on the ground mentioned in his appeal along with any other grounds.

Meanwhile, Imam’s lawyer informed the court that the next date of hearing before trial court is February 12, the latest order sheet of trial court shows it to be February 07. Advocate Talib Mustafa appeared for Sharjeel Imam and SPP Ashish Dutta appeared for the State.

Sharjheel Imam had moved the application before the trial court in August last year. The application was reserved by ASJ Amitabh Rawat of Karkardooma Courts in September 2023. Nonetheless, the judge was transferred later and another judge presided over who is dealing with the application now.

The application notes that Imam is ready to furnish reliable surety to the satisfaction of the court and also to abide by the conditions or restrictions imposed on him, in case of his release.

In June 2023, Imam had approached the Delhi High Court challenging proceedings against him in two different cases for the same speech delivered at Jamia Millia Islamia University in December 2019. The matter is pending adjudication.

The State of Uttar Pradesh on Friday informed the Supreme Court that it has withdrawn 274 notices issued to Anti-CAA protestors in 2019 for recovery of damages done to public property and proceedings initiated against them, during protests against the Citizenship Amendment Act and the proposed NRC.

The matter was listed before the Bench of Justice D.Y. Chandrachud and Justice Surya Kant. The Court granted liberty to the UP government to proceed against alleged anti-CAA protestors under the new law “Uttar Pradesh Recovery of Damages to Public and Private Property Act” notified on August 31, 2020.

Nilofar khan/Petitioner, asked the bench to pass direction to the state govt to refund back the money to small vendors, whose properties were either vandalized or seized by authorities.  AAG Garima Prasad prayed the bench to pass the order of status quo in concerned to release the money back to vendors. 

To which, Bench refused to pass any order of status quo with regard to recovery of money from state government to vendors.

The Supreme Court was hearing a plea filed by one Parwaiz Arif Titu seeking quashing of notices sent to alleged protestors by the district administration for recovering losses caused by damage to public properties during the anti-Citizenship (Amendment) Act (CAA) agitations in Uttar Pradesh and asked the state to respond to it. The plea has alleged that such notices have been sent arbitrarily against a person, who had died six years ago at the age at the age of 94 and also to several others including two people who are aged above 90.

On 11th February, the Supreme Court had given a final opportunity to the Uttar Pradesh government to withdraw the proceedings against the alleged anti-CAA protestors of the December 2019 incident saying that it was in complete violation of the law laid down by it. 

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The Court had said that if the government fails to withdraw it, the court will quash the proceedings. The court said that the UP government had appointed ADMs to oversee the claim tribunals instead of judicial officers. The court had delivered two judgments in 2009 and 2018 related to it. The court had said that the proceedings were contrary to the law laid down by the Supreme Court and cannot be sustained.

Formation of Committee and guidelines by Supreme Court :

The Supreme Court took note of instances of mass violence and damage that it caused to public property across the country in 2007. The Court gave directions for formation of two Committees under former Judge K.T. Thomas and Senior Advocate Fali S. Nariman to recommend legal steps to handle the situation.
In a judgement passed in 2009 titled as Re: Destruction of Public and Private Properties vs Govt. Of A.P. the Supreme Court issued guidelines based on recommendations of these committees, and allowed the High Court to take cognizance of incidents of mass damages to public property in absence of a state legislation.

These guidelines were re-appreciated and re-affirmed in Supreme Court in 2018 in another judgement titled as Kodungallur Film Society & Anr. vs Union of India and Ors. The guidelines laid down were as follows:

The guidelines will be applicable only in cases of absence of legislation in this regard

In cases of mass destruction to property , the High Court may take suo motu action and set up a machinery to investigate the damage caused and award compensation. The Court can take suo motu action or the State Government may file a petition before the High Court.

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A sitting or retired High Court or District Court judge as a Claims Commissioner to estimate the damages and the liability.

A report has to be given by the Claims Commissioner to the High Court or Supreme Court, following which the Court will decide the liability after hearing the parties.

Contradiction between the Guidelines given by Supreme Court and Allahabad High Court

The Supreme Court puts the Onus of assessment of damages and recovery from the accused on High Courts of every State, whereas the High Court puts it on the State Government, making them responsible for undertaking processes to recover damages.

The High Court guidelines take away the aspect of Judicial overview, removing a safety mechanism against arbitrary action, while in the Supreme Court guidelines, the High Court is supposed to give people an opportunity of being heard.

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Reason for the petitioner moving before Hon’ble Supreme Court :

The petitioner has clearly stated the reason for moving the petition before the Supreme Court, as a Public Interest Litigation and not before the High court of Uttar Pradesh, in his petition before the Supreme Court. The reason stated is the situation of total anarchy in the state of Uttar Pradesh where people are afraid of their lives and property, and a possibility of not being spared by the state government. According to the petitioner, the Chief Minister of the state has been against the protestors from the very beginning, even before the demonstrations had begun he had declared that there was no reason for a protest against CAA, and many congratulatory tweets were posted by his office against the protestors.

The way in which the Government, administration, and police acted against the protests by using disproportionate force and denied public accountability, was completely against the basic principles of democracy, violation of principles of Rule of Law and complete violation of Fundamental Rights guaranteed under Articles 14, 19, 20 and 21 of the Constitution of India.

A Delhi court on Tuesday directed the prosecution of four accused in a Delhi riots 2020 case in a case of attempt to murder and rioting.

Karkardooma Additional Sessions Judge Amitabh Rawat, while directing the trial, said that there is sufficient ground to prosecute the four on the basis of the testimony and evidence of the witnesses present in the case.

The Court framed charges against Mohammad Zubair, Mohammad Amir, Shamsuddin and Mohammad Barik under Sections 147 (rioting), 148 (rioting armed with deadly weapon), 307 (attempt to murder) read with Section 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object) of the Indian Penal Code (IPC).

The court said that prima facie, these four accused have fired bullets which killed three witnesses and incited riots. However, the court made it clear that the charges of criminal conspiracy and endangering the lives of others were not made out against the accused. The accused allegedly formed an unlawful assembly at Chudi Gali, Maujpur, and fired at the three witnesses.

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After violence between the supporters of the Citizenship (Amendment) Act and the people protesting against it, communal clashes had broken out in northeast Delhi in February 2020, which had led to the deaths of 53 people and left over 700 injured.

Read copy of the order here:

As protests subsume India, the above question is being increasingly asked. While we are a democracy, we haven’t got it right as critics are put in detention, dissent silenced and majoritarian tactics used.

By Shaan Katari Libby

On any given day, one reads about protests raging and about how democracy is being compromised in the country. Whether the issue is Kashmir, the Citizenship (Amendment) Act, the Bihar election outcome or farm bills, there is a growing unease that all is not well. This is often followed by a sense of utter helplessness.

Democracy—that holy grail that we guard so fiercely and impose on countries so vigorously—what is it exactly and why do we hold it so dear? A quick look at history reveals that in ancient Athens (6th century BC) where it evolved, it was quite literally a government “for the people by the people” (demos means people and kratos is power). Every position was available to citizens via a lottery. They held these jobs for a year only, so over time, every capable person was involved in governing some part of their ecosystem.

There were other ideas regarding democracy too Pericles, the famous Greek general, believed that certain leaders could be outstanding and hence, better suited for certain leadership roles, and Plato and Aristotle had little faith in a lottery. They felt that a few good people should rule, some label these as “selected oppressors”.

Prior to the writing of the Magna Carta of 1215, India’s Chola kingdom had an organised three tier democracy, the details of which are even inscribed on temple walls. With transparency and accountability built in, power remained with the people to replace leaders who failed to measure up.

Jean-Jacques Rousseau, in The Social Contract (1762), strongly believed that all people should have equality and freedom by a legitimate contract; that any form of representation or handing over of power was incompatible with true direct democracy. This philosophy of pure participative democracy, although practised till today in towns of Switzerland, and reinvented to include modern technology, rapidly becomes unwieldy when applied to large numbers.

Later on, revolutionary socialist thinker Karl Marx (1850s) emerged with his idea of political rights alone being insufficient. People needed social and economic rights too in an essentially participative democracy.

Lenin in Russia became politically radicalised after his older brother was executed in 1887 for plotting to assassinate Czar Alexander III. He was then expelled from Kazan Imperial University for an illegal student protest. Lenin read radical political literature, including the writings of Karl Marx, author of Das Kapital.

In 1917, the Russian Revolution was already beginning. Strikes over food shortages in March had forced the abdication of the inept Czar, and Lenin began plotting an overthrow of the “dictatorship of the bourgeoisie”. He advocated direct rule by the workers a “dictatorship of the proletariat”. He decided to seize power secretly by organising peasants into Red Guards a volunteer paramilitary force.

In 1917, the Red Guards captured provisional government buildings in a bloodless coup d’état. The Bolsheviks seized power and proclaimed Soviet rule, making Lenin the leader of the world’s first communist state. Despite his intentions to implement democracy, this didn’t happen.

John Dunn, the political theorist, has listed the criteria that liberal democracy must have, as opposed to a totalitarian one. A liberal democracy needs a representative institution, free elections, independent judges and importantly, competitive political parties along with a civil society made up of independent associations with the right to debate, and an understanding that losers have to abide by their losses. A liberal democracy cannot exist without the ability to disagree with those at the helm.

In the book The Civic Culture, Professors Sidney Verba and Gabriel Almond speak of how the collective should be governed with rules to apply, that citizens can and should speak up, and that the government of the day ought to be able to share power with those who disagree with them. More educated people want more freedom vis-a-vis the government and they tend to be more tolerant.

As opposed to democracy, there are “mobocracies”. The term has been ban died about of late in editorials that speak about why the government should not yield to any protests.

One of the earliest mobocracies was the French Revolution of 1789. This led to many unnecessary deaths and the bid of the revolutionists for liberty, equality and fraternity was modelled on their success with assisting in the American Revolution.

As writer and Professor Simon Schama puts it, the French had no political system in place, and invented one. This is in line with the views expressed in the 1700s by Edmund Burke, the Anglo-Irish statesman and philosopher, when considering revolutionary France and its attempt at democracy.

Drawing on the writings of Aristotle, Burke had asked what the real difference was between monarchy and democracy: “Of this I am certain, that in a democracy, the majority of its citizens is capable of exercising the most cruel oppressions upon the minority, whenever strong divisions prevail in that kind of policy, as they often must.” However, Burke was convinced that nothing was quite as oppressive as a democracy armed with self-righteous fury at all who oppose the will of the majority.

Professor Verba has stated that the greatest threat to a civic culture is ethnic conflicts, not terror, as is often cited. Terror is an irrational fear often introduced by governments to take away civil liberties, Northern Ireland being a case in point. (More recently, fear of a virus has served the same purpose.) There is a difference between an indiscriminate attack and violent subversion against a government. However, ethnic conflicts can tear a nation apart.

Although the term sounds good in principle, true democracies are not always quite so rosy. When Pontius Pilate found Jesus Christ was not guilty, he was handed over to the people who convicted him, a truly democratic outcome, but not a just one. The English Civil War in which Charles I was executed was a class struggle between the Roundheads and the Royalists.

Coming to India, our forefathers intended for us a democracy as they understood it a representative liberal nation with universal suffrage for a population that had been subjects for too long. While there were those who warned Prime Minister Jawaharlal Nehru and others to wait for certain parameters to be fulfilled before taking these steps, he did not do so.

Nehru was validating Immanuel Kant: “Freedom is the precondition for acquiring the maturity for freedom, not a gift to be granted when such freedom is achieved.” India’s founders saw democratisation as a form of education.

We are the world’s largest democracy, but as Indira Gandhi put it, regional loyalties would explode if suppressed and for democracy to work in India, people need to feel they have a voice; and it is likely to run better if they are participants.

As author Madhav Khosla said in a recent interview with Professor Shruti Rajagopalan, the combination of centralism and localism in India makes people see each other as citizens beneath a common umbrella. In this sense, the idea of a state—just like the idea of a common set of rules or citizenship unmediated by identity—are all ways to make Indians embrace new forms of knowledge and understanding.

Ultimately, a democracy thrives on cleavage that is, not everyone agreeing. For a government to succeed, a balance is needed between cleavage and cooperation. In India, we have institutionalised cleavage, a delicate balance, indeed.

So, having read all of the above, it comes down to one question: Is India a democracy or a mobocracy? We are a democracy as we have proper elections and we protest peacefully. We are not looting/pillaging/causing mayhem. We are not a mobocracy passing judgement on anyone.

Have we got democracy right? No, not really. We undermine democracy by putting critics in detention, silencing dissent, passing Bills without debate, disallowing inter-religious marriages, using majoritarian tactics and playing the very dangerous religion (ethnic) card.

Could we still get it right? Absolutely. Our country needs a fresh start. We need proper political education in schools. We cannot have politicians who start their careers by borrowing large sums just to be permitted to stand for election, as they then spend years getting back that money by fair and foul means. Their focus is on anything but the country.

We need people who enter politics with a clean image and rise above self-centred agendas, think about the country and not themselves, and play the long game; release all their worst critics, engage with them even. They need to debate issues and take on board good suggestions. A democracy is about moving the country forward, not a single party.

Looking ahead, it is problematic when people disenfranchise themselves because organised interest groups take over, leaving a national voter turnout of approximately 30 percent of the electorate. Then, say, 18 percent would decide who runs the country.

Ernest Callenbach in his book Ecotopia (1975) explained how wars would be less likely if decisions taken were truly representative of the people. A truly representative government would be a portrait in miniature of the people that is, 50 percent female, very few lawyers, a few property owners, workers, professionals, minorities, and so on.

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The late Tony Benn, Labour MP and propagator of the Peers Bill that permitted him to renounce his title, had five questions for anyone who considered himself powerful. Our democratically elected representatives would do well to ask themselves these every day: What power do you have, where did you get it, in whose interest do you exercise it, to whom are you accountable and how can we get rid of you?

—The writer is Barrister-at-Law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research assistance by Praveen PK and inputs from the BBC

Lead Picture:UNI

As the judiciary increasingly comes under criticism, would an impartial jury trial by lay persons be desirable? They would be the very embodiment of equity and allow for a more open system of justice.

By Shaan Katari Libby

At a time when our country is battling the Covid pandemic, massive unemployment, mass migration and a majoritarian government, one wonders if it would be better to bring back the jury system to decide matters. The basic idea of a jury being tried by one’s peers dates back (in the UK) to the time of the Normans in 1066. According to Encyclopedia Britannica, it was the presence of a jury that led to courts being centralised and ultimately, the creation of the common law as we now know it. Drastic methods of extracting evidence like various tortures (the ordeal) were replaced with trials for criminal and civil cases.

As the Empire expanded, so also did this method of dispensation of justice to Africa, Asia and America. Jury trials still exist in the UK in a small percentage of cases. These are mainly in criminal courts and in some very limited civil cases. Certain cases permit trial by jury where reputation or character is involved. This includes cases involving defamation, false imprisonment, malicious prosecution and fraud.

Jury trials in India came to an end following the case of Nanavati vs State of Maharashtra (1959). The defendant was a naval officer, KM Nanavati, who was accused of murdering a man his wife, Sylvia, was having an affair with. In this case, he ultimately spent three years in prison before being pardoned and emigrating to Canada with Sylvia and their three children. The only jury trials which still continue in India are those conducted for Parsi matrimonial cases.

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There are many reasons why a jury trial would be desirable. In India, of late, the Supreme Court has come under much criticism by senior advocates and former judges on several counts, including not taking up key constitutional matters such as the abrogation of Article 370 and the threat to secularism posed by the Citizenship (Amendment) Act which discriminates against Muslims. The current crises could arguably be resolved if the decisions were made by randomly selected lay persons, as then the judges could not be blamed at all. It would give them breathing space all they would need to do would be to preside over and direct the jury about the law. Public confidence in the judiciary would thus be restored as a truly democratic society.

A jury trial is considered to be impartial and fair as was made clear from the UK’s Runciman Commission on Criminal Justice in the 1990s. Also, a jury, by and large, assures a fair result as the members are not bound by prior legal knowledge. They are the very embodiment of equity. A jury would also allow for a more open system of justice whereby a cross section of the public are meant to be involved in the dispensation of justice.

Cinematically, a trial by a jury was best exemplified in the famous film To Kill a Mockingbird, based on a book by Harper Lee of the same name. Here, Atticus Finch, the lawyer who fights to acquit a black man, Tom Robinson, who was falsely accused of raping a white woman in an Alabama town, tells the jury: “A court is only as sound as its jury, and a jury is only as sound as the men who make it up.” Though Finch demonstrates to the jury that Tom could not have committed the crime, the jury of 12 white men vote to convict him. So class and race biases, which a jury may be suffering from, can often release or convict a person.

Ana Swanson wrote in The Washington Post in 2016 that differential results have a lot to do with a lack of diversity on judicial benches and juries, which tend to be disproportionately white, male and older. “Though racial discrimination in jury selection is illegal, it has a long history in the US. Research has long suggested that the selection process is biased against minorities, women, the young, the poor, and those with particularly high or low education levels.” She further adds: “A 2011 study that looked at 173 death penalty cases in North Carolina found that peremptory challenges were used to remove blacks from juries at twice the rate of whites. In Houston County, Alabama, 80 percent of the African-Americans qualified for jury service were removed from juries between 2005 and 2009 using peremptory strikes.”

While a jury could be just the answer for India, there is another side to the picture. One is the possibility of perverse decisions as was the case with the Nanavati one where he had pleaded not guilty and argued that it was culpable homicide as he shot the man “in the heat of the moment”. Initially, the jury reached the verdict not guilty of murder. However, the sessions judge thought that this was a perverse decision and referred it to the High Court as the jury had been misled by the presiding judge who had wrongly told the jury that provocation could come from a third person. In the UK, the case of Regina vs Randle and Pottle (1991) also yielded a perverse decision where the defendants helped a spy, George Blake, escape from prison. They had even written a book about it. The jury acquitted them, possibly due to the lapse of time and perceptions of unfairness.

Secrecy can work negatively as one has to be very sure if the jury has understood the deliberations. In a country like ours, where a large mass of the population is uneducated and illiterate, it could be a serious issue if we are looking at a true representative cross section as jurors. Cheryl Thomas published a report entitled “Are juries fair” in 2010. They were found to be fair, but worryingly, only 31 percent of jurors understood oral instructions, and this increased to 48 percent when the directions were written down by the judge. In India, this would be even more of a problem given our literacy levels.

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Jury tampering is a real danger in India where there is corruption and as with the Nanavati case where the media coverage was unexpectedly overwhelming, it would often be found that the jury was being influenced. It was for these reasons of conspiracy and influence by the media that jury trials were abolished in India. Another possible concern is issues like religious or caste bias, but with a cross section, this should be negated.

Overall, while there are pros and cons to having jury trials, it would appear that right now, justice delayed is justice denied, and if we were to have panels of jurors churning out equitable verdicts across the nation, then it may appear that justice is accessible and transparent not to mention democratic (by the people for the people). If every citizen in this country is entrusted with the right to vote who governs, then surely every citizen should also be fit to decide who is guilty and who is not.

—The author is a barrister-at-law (Honourable Society of Lincoln’s Inn, UK) and a leading advocate in Chennai. With research assistance by Riyah Dugar