In a previous article, I examined the Delhi high court’s September 2 order denying bail to nine individuals in the “Delhi riots cases,” with a focus on the case of Umar Khalid. I noted that this order – like the orders before it in the same case – adopts an “eyes wide shut” approach to the evidence before it. Faced with the fact that Khalid at no point called for or instigated communal violence, the court falls back upon a Moscow Trials-style invocation of “conspiracy”, grounded in vague and uncorroborated statements from anonymous “protected” witnesses, filling in the gaps in the prosecution’s case with its own assumptions and inferences, and mis-applying (or not applying) existing legal standards.In many respects, the bail rejections of the other accused individuals follow a similar pattern of reasoning. Out of these, the case of Gulfisha Fatima is the most glaring, because the allegations against her are almost entirely at the behest of anonymous, “protected” witnesses (without corroboration). When is the earliest that such corroboration may take place? At the trial. How long will the trial take? Given that there are 900 witnesses to be examined, and given the pace of Indian criminal trials, one may estimate that it will take ten years or thereabouts. And in any case, the high court – as we have seen in the previous post – appears to believe that the trial is proceeding at a “normal pace”, and speeding it up would be “unfair” to the rights of all parties. Therefore, shorn of legalese, the high court holds – in effect – that it is okay for a person to spend 15 years in jail just on the basis of anonymous witness statements. It feels almost unfortunate that Andrey Vyshinsky, Stalin’s prosecutor at the Moscow trials, is long dead. Had he been around, he could definitely have taken home some notes from the Delhi high court.An argument was also made by Fatima’s lawyer that in all material respects, her case was similar to that of Devangana Kalita and Natasha Narwal, who had previously been granted bail (for the extraordinary journey of that case, see here and here). Bail, therefore, was sought on the well-established ground of parity. How does the high court respond to this? It needs to find something to distinguish the two cases, and so it turns to the theatre of the absurd:The WhatsApp groups that the Appellant allegedly created, of which one noticeably, revolve around coordination in protests and ensuring that as many women participate in the protests. This factum of creation of these two groups cannot be seen in isolation, the consideration should weigh in on broad probabilities as per the settled law.But there is – it should be needless to state – nothing illegal about forming WhatsApp groups to coordinate protests, and to encourage the participation of women in the protests. In fact, how else are you going to coordinate a protest other than through a WhatsApp group (now if you used Signal, that would presumably be even more serious indication of a conspiracy!)? We therefore come back to the initial point about how, in this case, each of the three courts involved have filled in the huge, gaping hole of the prosecution’s case with an assumption that is totally untethered from reality. To close the gap between the fact that these nine people were involved in the democratically legitimate activity of organising protests against the CAA, and the fact of communal violence that claimed the lives of 54 people – a gap that is as vast as the grand canyon – the high court has built a bridge of smoke where the organisation of protests itself becomes the conspiracy. In essence, what we have is an implicit attempt by the court to criminalise protest itself, because – as noted above – there is no actual, tangible evidence of the protesters themselves engaging in acts or instigation of violence.Apart from the specific case of Fatima, there are two other strands that run through the multiple denials of bail in the judgment. The first is what I call a judicial double-standard. In short, where there is a fact that is potentially favourable to the individuals, and militates in favour of granting bail, the high court cites the Watali judgment, claps its hands over the eyes, and refuses to consider it. However, when it comes to reasons against granting bail, the court is happy to go deep into the evidence, and make all kinds of inferences that are not even on the record. So, for example, in the case of one of the individuals, Shifa-ur-Rahman, there is an allegation that funds raised for the protests have been used for instigating the riots. There is, of course, no direct evidence of this.The high court, however, makes the extraordinary claim that because Shifa-ur-Rahman was the president of a Jamia student organisation called AAJMI, “the possibility of misuse of the position … cannot be ruled out.” This “possibility” that “cannot be ruled out” becomes one of the bases for refusing bail. While this is a bizarre leap of logic in its own right, the judicial hypocrisy is laid bare when, in response to defence counsels’ argument that the delay in recording the statements of the “anonymous” witnesses undermines their probative value when it comes to assessing whether a prima facie case based on those statements is sustainable, the court cites Watali to say that it cannot consider this question at the stage of bail. But for a moment, let us ask ourselves which of the two “possibilities” is higher: the “possibility” of Shifa-ur-Rahman “misusing” his presidency of AAJMI, or the “possibility” that highly belated statements taken from “anonymous” witnesses are worthy of skepticism? Which of these ought not to be “ruled out”?In sum, it seems that the high court will refrain from conducting a “mini-trial” only when doing so would make the case for bail inevitable; in all other cases, the high court is perfectly happy to conduct a host of mini-trials, draw out all kinds of inferences from the facts on record, and use those inferences to deny bail. Judicial hypocrisies of this kind – and this inconsistent approach to assessing the evidence – are rife throughout the judgment.Clockwise from top left: Shifa ur Rehman, Khalid Saifi, Meeran Haidar, Gulfisha Fatima, Athar Khan, Sharjeel Imam, Umar Khalid, and Saleem Khan.The second strand is that while on the one hand – when considering arguments for parity – the high court goes to great lengths to emphasise, re-emphasise and re-re-emphasise that every individual’s role in the “conspiracy” is different, and while it invokes the most microscopic textures of difference (such as Fatima starting a WhatsApp group!) to justify denying bail on grounds of parity, the same high court, within this judgment, is perfectly happy lumping together individuals into groups and denying bail en masse. Thus, Umar Khalid and Sharjeel Imam get clubbed together as the “intellectual masterminds”, and then other individuals get clubbed together, ostensibly based on which protest sites they were at, or what was their broad-brush organisational role in the protests.While this may seem innocuous, it is not: as noted in the previous posts, and the posts before, this generic clubbing allows the high court to avoid its obligation of scrutinising the evidence to ensure that the allegations against each individual are specific and particularised, not generic and inferential. This clubbing allows the high court to justify the denial of bail by – once again – invoking the shibboleth of the “conspiracy”, and casting the nine individuals before it in shadowy, undefined roles within that conspiracy.Finally, after all this, it is also important to consider separately the case of Sharjeel Imam, as it is he who has been – since the beginning of the protests against the CAA – most strongly vilified in the media. In this judgment, Imam is clubbed alongside Khalid, and therefore, many of the arguments made in the previous post apply equally to him. There is the additional point to note that Imam was already in prison from January 28, 2020 onwards – almost a full month before the riots began.Other than the issue of a “conspiracy” – which I have addressed both in the last post and in this post – the additional allegations against Imam pertained to certain speeches that he had delivered. The first – referenced by the court in its analysis – was about a “chakka jam” in Delhi that would disrupt the flow of services. The second – quoted in the submissions of the State – was a speech about cutting off access to the north-eastern states beyond Assam until the government listened to the protesters. This, it was argued, was secessionist.Let us take each speech in turn. On the chakka jam, it is worthwhile to remember, for a moment, that we live in a country that owes its existence, as a nation-state, to forms of mass mobilisation and protest that were, by their very nature, designed to be disruptive (and the chakka-jam is one among them). Nor is this restricted to the freedom struggle: in a book titled Hailing the State, Lisa Mitchell examines a range of unconventional ways in which Indians have communicated their claims to the State outside of the electoral process: from the “rail roko” to the “chakka jam”. These forms of protest have a specific history and a specific vintage, and have been practised by Indians of different persuasions, across time and space. It may be argued that the State reserves the right to respond to such methods through the legal form; while that it is a separate debate, what the State has done here is to use anti-terror laws to deal with what was a political protest (recall, once again, that the link between the protesters and the violence remains unproven). That is where the problem lies.On the second speech, pertaining to the North-east: while the speech does not figure in the court’s analysis, it is worthwhile to clarify that this cannot be a ground for denying bail under an anti-terror law either. This is because the Constitution does not allow for the punishing of violent speech; it allows for the punishing of incitement to violence. There is a crucial difference between the two. To say that access to the north-east will be cut off until the government listens to the protesters’ demands is, at its highest, violent speech. If, on the other hand, Imam had at his command a private army that would march upon his bidding to actually cut off access to the north-east, then that would be incitement to violence. Needless to say, nothing of the sort happened. Indeed, this distinction between violent speech and incitement to violence has been a consistent part of the Supreme Court’s free speech jurisprudence, from Shailabala Devi (1953) to Shreya Singhal (2015). Under that jurisprudence, it must be stated that Imam is as entitled to bail as his eight co-accused in these orders.As an aside, it’s probably worth remembering that if every instance of violent speech was met with a UAPA FIR and a half-decade in jail, then a lot of people who have said – and done – much worse than Imam, would be behind bars at the moment. They are not. He is.At the end of the day, reading the high court’s analysis of Imam’s case, and indeed, reading the 133-page bail order as a whole, the overarching framework is clear. It depends upon what Mourid Barghouti once called “a simple linguistic trick.” This simple linguistic trick is a framing device: instead of framing the anti-CAA movement as a legitimate collective protest with legitimate collective political goals, in which Muslim activists played a prominent role (it is no coincidence that all the nine individuals whose bails were denied yesterday are Muslims), the court frames it as a conspiracy of violence. Through this “simple linguistic trick”, the violence that actually happened is linked to the protests, as though the protests, by design, carried within them the seeds of violence. And the moment you adopt that framing, WhatsApp groups become seedbeds of secession, speeches preaching peace start carrying double meanings, and dissent turns into treason.It is crucial, therefore, for the judicial institution to urgently correct this distorted way of seeing. With every passing day that it does not do so, the miscarriage of justice will become more and more severe, until one day, it will indeed be too little, too late.Gautam Bhatia is a lawyer. This article was originally published on the author’s blog. It has been lightly edited for style.