The protest in Jamia Millia Islamia against the controversial Citizenship (Amendment) Act 2019 gave rise to different incidents on different dates. It started on December 13, 2019. This incident became the subject matter of an FIR and initially, one accused was charged in March 2020. Later, 11 more students of that time were charged by filing additional chargesheets in July 2021.
The court of first instance examined the records placed by the prosecution and while discharging the subsequently added 11 accused; and passed scathing remarks against the manner in which the investigation was carried out. The Delhi high court recently reversed the judgement by reinstating the charges and directed them to face criminal trial.
A major portion of the 90-page high court judgment deals with the constitutional right to protest against the policies of the establishment to say that ‘the law protects the right to express one’s views and protest peacefully’ but the law does not protect or guarantee the right to protest and demonstrate ‘violently’, threatening the safety of others and to damaging public property or threatening and damaging their own campus and personal safety of others including the law enforcing agency. Precisely this is the point in issue.
The district court examined this issue and discharged the accused for the reasons that the police did not chargesheet the actual perpetrators who could have done this, and the police did not place prima facie evidence to demonstrate that the subsequently chargesheeted accused persons damaged property, threatened the safety of others or damaged public property or their own university.
While reversing the view of the trial court, the high court appears to have focused more on the alleged ‘violence’ rather than the police placing any prima facie evidence of these discharged accused being involved in the violence. Thereafter, the court has also invoked the principle of vicarious liability of rioting against these discharged persons and has propounded the concept of ‘violent collective action’. The high court has used the word violence/violent about 123 times while the word ‘peaceful(ly)’ finds its place about 45 times in the process of reversing the discharge order of the trial court, where the trial court had reached a finding that the polices’s action was arbitrary in choosing people to face the trial and this action of the police was detrimental to the concept of fairness.
In the deliberation of ‘right to protest’ versus ‘not to commit violence’, the reading of the judgement gives a much bigger picture of ‘violence’ than ‘peace’ and in that process, requirement of sufficiency of evidence for framing of charges or availability of prima facie strong evidence appears to have lost the required force. The focus of the high court is largely on a video clip which is not a continuous but a video that selectively portrays the breach of peace by the sloganeering gathering present there, pushing the barricade placed by the police, and the police trying to keep it installed at its place.
On the contrary, the first court, while discharging the accused, had focused more on the sufficiency of evidence for framing of charges and in that process in the entire judgement of 32 pages used the word violence nine times and peaceful(ly) about four times to reach a conclusion that even on prima facie basis, the discharged accused were non-complicit in taking part in the mayhem. Obviously, the arguments of both the sides in both the courts were similar.
Coming to the elements constituting ‘violence’ in democratic protests, one must keep in mind that handling of the protest by the administration is also important. If the police was injured due to stone pelting, the said culprits must be found out to face the charges – but if those culprits are not found, those who did sloganeering, pushed the barricade without injuring the police or anyone present at the narrated incident cannot be held vicariously liable for a subsequent incident in which the police claims to have been injured. It is not a case that there is prima facie evidence that these charged persons threw stones on the police and injured them; neither is this a case of actual violence relatable to the incident of burning the buses etc. for which two days later there were separate criminal proceeding.
The violence has been understood more for the reasons that the action of the accused; if they succeeded in crossing the barricade, it would affect the fundamental rights of others. There is no prima facie evidence of actual violence by these 11 charged accused except pushing the barricade and raising slogans against the police. Fixing vicarious liability qua violence is like importing the definition of ‘violence’ from the legislation and jurisprudence to protect women, children and infirm from domestic violence. At the same time, should we forget that in the farmers’ protest against farm legislations, these things happen at the protest site and the national highways remained blocked for months. There, the police showed a different level of self-regulation.
While dealing with these politically rooted aspects of criminal justice administration, the court must see these rapidly changing circumstances during the incident in question rather than affirming the versions of police with a startling gap in narrating the facts and producing unconnected evidence for making out a strong prima facie case. The police has collated the scattered incidents of two to three hours in which faces are not common. The sloganeering group pushing the barricade will not become an unlawful assembly, specially when there was no prohibitory order under the Code of Criminal Procedure.
In a justice system like ours, the outcome of a litigation is largely judge oriented. Sustaining the continuance of a criminal trial is completely in favour of the police and prosecution. Finally, if the accused is discharged after prolonged trial, nobody is accountable for the ordeal a citizen faced. In this background, this is another judgement which shall add jurisprudential value for law books and academic research rather than objectively resolving the dispute.
M.R. Shamshad is an advocate, Supreme Court of India.