A lot has been written and said about the Supreme Court judgement whereby bail was denied to Sharjeel Imam and Umar Khalid despite having spent six years in custody as undertrial prisoners.Amongst the many observations that one takes away from the general disappointment that has been expressed with respect to the aforesaid denial of bail, what seems to be particularly unfortunate is a conspicuous lack of identification and sympathy with Sharjeel. The primary reason for the same, it seems, is the misinformation surrounding events that led to his arrest and the consequent trial. Thus, it only seems fair to set the record straight.Sharjeel is a Ph.D. student, and a research scholar at Jawaharlal Nehru University (JNU). He completed his B. Tech and M. Tech from IIT, Mumbai and a Masters in Modern History and Masters in Philosophy in Modern History from JNU. He received the Maulana Azad National Fellowship and cleared the National Eligibility Test making him eligible for the position of assistant professor. Apart from holding a brilliant academic record that held the promise of a very bright future, it is crucial to note that he never had any run-in with the law before the arrest and consequent incarceration for giving speeches during the anti- Citizenship Amendment Act (anti-CAA) protests across India. Legality of chakka jaamFollowing the speeches delivered by him, eight FIRs were registered against Sharjeel. Out of these, he has been granted bail in seven, with courts, in several bail orders, recording that no calls for violence were made by him. Only in one FIR, which pertained to an alleged conspiracy to cause the riots in Delhi, his bail has been rejected and he was arrested in relation with the same on August 25, 2020 (six months after the registration of the said FIR) on the basis of his speech delivered in Aligarh on January 16, 2020, two months prior to the riots. Pertinently, Sharjeel was arrested on January 28, 2020 in relation with the Aligarh speech. Admittedly, no violence took place on account of the Aligarh speech delivered by Sharjeel or immediately following it. It’s also crucial to note that no material had been shown by the prosecution to show the link between the speech and pogrom. In the speech delivered in Aligarh, Sharjeel calls for chakka jam and consequential blockade in aid and support of the anti-CAA protests. A mere call for a chakka jaam without any call for violence is not an offence, which brings us to the legality and sanctity of the protests against the CAA and of protests in general. What needs to be remembered is that no protest, no matter the cause, can attempt to achieve its object, without causing some degree of inconvenience to the ruling dispensation. All protest starting from the Swadeshi Movement right up to the farmer’s protest, have this feature in common that they all caused some amount of obstruction to the daily functioning of people and the state so as to be taken cognisance of by the state. Hence in all protests, blocking of roads and other transport modes is commonplace. In fact the legality of such an exercise of peacefully expressing dissent has been upheld by the Supreme Court.In so far as the Shaheen Bagh protests are concerned, the dispute was never around whether it was legal or not for the protesters to occupy the roads as a show of protest, the question that had in fact been raised before the court was whether roads can be blocked indefinitely. Even when it passed its final judgement on the right of protesters to block roads, the Supreme Court did not term the same as illegal in fact it was noted that despite the law facing a constitutional challenge before this court, that by itself will not take away the right to protest by persons who feel aggrieved by the legislation.The legal history of our country is replete with examples of protests (including protests where chakka jaams have taken place) having been upheld by the courts, for instance in the case of In re Annadurai (1958) Mad. 865, it was held that section 41 of the Madras City Police Act, 1888, did not violate Article 19(1)(a) & (b), for the section laid down certain conditions to be observed by the commissioner before passing an order prohibiting public meeting, and one such condition was that he considered such prohibition necessary for the preservation of public peace or public safety. Although no time limit was fixed for such an order, having regard to a convention for over three years, such orders had been limited to 14 days at a time. The court, however, observed that an order exceeding 14 days would be invalid. In Himmatlal v. Police Commissioner, Ahmedabad (1973) 1 SCC 227, the Supreme Court held that the state could not impose unreasonable restrictions upon the right to hold public meetings which flows from Article 19(1)(b) & (d). In Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324, the Supreme Court held that the state cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The state can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. It was further held that the state and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the state or municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open-air meetings in any large city.Also read: Can We Fault Sharjeel Imam and Umar Khalid for Dreaming of a Better World?The right to protest has thus not only been recognised as a fundamental right under the constitution but has also been held to be crucial in a democracy which rests on participation of an informed citizenry in governance. It has been held that this right strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from the state authorities as well as powerful entities. This right is essential in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities. In this background, where one can proceed, as on date, with the presumption that peaceful protests are not illegal in India, can the organising of such protests with the intention to block roads, be brought within the ambit of a terrorist act by any stretch of imagination?In its finding regarding Sharjeel, the Supreme Court has repeatedly laid emphasis on allegations of deliberate mobilisation, planned blockade strategy, and intentional disruption of civic life, and has distinguished the same from a role limited to mere association, presence or protest participation. This approach begs two questions: how was the act of organisation of protests against CAA illegal when ultimately the protests were not illegal and how are all the means adopted in furtherance of the objective of organising the protest including digital mobilisation (in other words text messages etc.) or strategising the blockade (in other words coordinating when and where to assemble) and disruption of civic life (which flows from the blockade), illegal, to the extent of rendering the person so organising, a terrorist? MisinformationDiving right into the subject of the so-called anti-national speeches given by Sharjeel, the same are on record and available on social media for everyone to judge for themselves whether repeated calls for peace and non-violence and encouragement for continued peaceful resistance to a legislation that seemed unfair, amount to a “terrorist act”. It is also for everyone to judge whether call for a chakka jam to further strengthen the protest amounts to a terrorist act. If the answer to the former is in the affirmative then surely the father of this nation would have been covered by the definition of a terrorist. If the answer to the latter is in the affirmative then all the groups or organisations that have till now agitated by either blocking railway tracks or roads for months on end would be covered under the definition of terrorists.The Supreme Court found prima facie merit in the allegation that Sharjeel played a distinct and foundational role in the genesis, planning and execution of a larger criminal conspiracy which ultimately culminated in widespread violence in Delhi that took place between February 22 to February 24, 2020. The admitted fact that has been overlooked is that Sharjeel was not in Delhi since the second week of January, 2020 and was in custody since January 28, 2020. Thus by no stretch of imagination can it be said that any of Sharjeel’s speeches delivered several weeks before the Delhi riots could have led to the riots. The actual events and speeches that have not even made it to the chargesheet were delivered by several political leaders immediately preceding the riots and expressly calling for violence. Getting the chronology rightBefore proceeding with the chronology of violence and hate speeches targeting the peaceful protesters that ultimately led the Delhi pogrom in February 2020 it would be apposite to point out that while the protests were happening peacefully, constant threats were received by the protesters, in view whereof the protesters had also approached the Supreme Court seeking protection. It’s important to keep this context in mind so as to remember that the protesters were peaceful throughout and their only objective was for the state to take back CAA or at least have a dialogue with them. However, in the absence of any assurance from the state the protests continued.On December 15, 2019, the police allegedly entered the campus of Jamia Millia Islamia at night without provocation and lathi charged students studying in the university library or sleeping in the hostels.On December 20, 2019, Kapil Mishra, the then BJP candidate from the Model Town constituency in the 2020 assembly elections in Delhi, led a march in central Delhi’s Connaught Place shouting, “desh ke gaddaron ko, goli maaro saalon ko” (shoot the traitors). Also read: Umar Khalid, Sharjeel Imam, and The Moral Arc of the UniverseOn December 22, 2019, Anupam Pandey, BJP president for Sonia Vihar Ward in North East Delhi, went live on Facebook, leading a march shouting the same slogan “desh ke gaddaron ko, goli maaro saalon ko” (shoot the traitors).On December 24, 2019, Mishra filmed himself live from Karawal Nagar, in North East Delhi, where he admonished the public for not resisting the anti-CAA protests and said, “Is your conscience dead?” He asked, “Will your eyes open up when the fire has reached your homes?” He then referred to the anti-CAA protesters saying, “Don’t mistake Karawal Nagar for Seelampur or Jamia… from here on, if a crowd gives any slogans, then it will get the answer in a language which we have learnt from our parents.” On December 25, 2019, Yati Narsinghanand Saraswati, a prominent Hindutva leader in West Uttar Pradesh and Delhi, gave a speech from the stage at Jantar Mantar and later interacted with journalists, making the following comments:“I appeal to all you young people, these Muslims who keep coming out [on the streets] they should know what will happen to them the day we come out. And I would like to tell Narendra Modi and Amit Shah, please don’t worry, we are all with you. You have brought the CAA, now bring the National Register of Citizens and after that put a stop to the population of these katuas. If these swine increase their numbers, they will spread filth, so to save this country from filth and dirt, please bring a law to stop their population, we will support you. And all of you, you fighters for dharma, each one of you lions is more than enough for 1,25,000 pigs…These people [Anti CAA Protesters] are enemies of this country, they should be put in jail. And if they do not reform even after being jailed, they should be sentenced to death. These people [the Muslims] are jihadis who want to spread filth in the country, these are jihadis who want to destroy the country, these are jihadis who want to take over our resources, these are jihadis who want to kill us all, these are jihadis who want to make prostitutes of our sisters and daughters. Such people have to be destroyed from their roots and this is our basic religious duty…After partition, the jihadis Gandhi and Nehru kept these traitors in the country. This is India’s biggest misfortune. It was not their choice, it was our weakness, we should have driven them out…Hindus will have to understand, these are not our people, they are jihadis and we will have to finish them off, this is our religion, this is patriotism.”On January 22, 2020, Manoj Kashyap, the then BJP candidate from Shahjahanpur constituency in Uttar Pradesh, referred to the protests in an election rally, saying, “When such situation is being created this way, the true sons of India must stand up… The brave men of India have to stand. The patriotic warriors of India have to stand. The ones who can protect their mothers and sisters can certainly be ready like Hanuman to burn somebody else’s Lanka”On January 23, 2020, Kapil Mishra posted the following texts on social media: India vs. Pakistan, 8th February, Delhi. 8 February ko Dilli ki sadko par Hindustan aur Pakistan mukabla hoga.(India versus Pakistan, 8 February, Delhi. On 8 February, there will be a contest between Hindustan and Pakistan on the streets of Delhi.)Delhi mein chhote chhote Pakistan bane.(Small Pakistans have come up in Delhi.)Shaheen Bagh mein Pak ki entry.(Pakistan’s entry in Shaheen Bagh.)AAP aur Congress ne Shaheen Bagh jaise mini-Pakistan khade kiye hai, jawab mein 8 February ko Hindustan khada hoga. Jab jab deshdrohi bharat mein Pakistan khada karenge tab tab desh bhakton ka Hindustan khada hoga.(AAP and Congress have supported Shaheen Bagh like mini-Pakistans, in response Hindustan will rise on 8 February).”On January 30, 2020, an unidentified man allegedly shot a protesting student of the Jamia Millia Islamia at an anti-CAA protest at Jamia area in Delhi on 30.01.2020. While students of Jamia Millia Islamia were in the process of preparing for a march to Rajghat on Mahatma Gandhi’s death anniversary, the 17-year-old youth brandished a gun and shouted at the protesters “yeh lo azaadi”. As some of the students tried to calm him down, he opened fire and injured a student, Shadab Farooq on his arm. On February 1, 2020, a gunman opened fire at the Shaheen Bagh protest site. On February 3, 2020, an unidentified gunmen riding a scooter opened fire outside gate number five of Jamia Millia Islamia where students and members of the civil society were holding protests against the Citizenship Act (CAA). On February 24, 2020, there were widespread reports of violent mobs rampaging through various parts of North-East Delhi. Unwarranted and incorrect application of Section 15 of the UAPAA comparison with the hate speeches and hate crimes that preceded the violence in Delhi, hence, puts one in a position to address what could only have been an error of the Supreme Court.Now, let us examine the definition of a ‘Terrorist Act’ as stipulated under Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). It states that: Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [economic security] or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country–(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause –(i) death of, or injuries to, any person or persons; or(ii) loss of, or damage to, or destruction of, property; or(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or[(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or [an international or inter-governmental organisation or any other person to do or abstain from doing any act; or] commits a terrorist act.The case made out by the prosecution and accepted by the Supreme Court was that the role played by Sharjeel was not limited to participation in the protests but was a foundational role in a calibrated conspiracy that commenced in December 2019, it was also alleged that the Delhi pogrom was not a sudden eruption but a culmination of earlier phases of mobilisation blockade and disruption, in which Sharjeel acted as an organiser and ideational driver. The so called foundational role played by Sharjeel was prima facie sufficient for the Supreme Court to include the same within the ambit of a Terrorist Act under Section 15 of the UAPA under the expression “by any other means”. A few issues in this approach are as follows:First, the expression “by any other means” cannot be divorced from the initial mandatory condition of doing an act with the intent to threaten the unity, integrity, security and sovereignty of India. None of the speeches delivered by Sharjeel and none of the coordination efforts made by him towards organising the protests, by any stretch of imagination, show an intent to threaten the unity, integrity and sovereignty of the country. They are clearly speeches and coordination efforts made towards organising protests against the Citizenship Amendment Act. Blocking of roads, as I have already elaborated upon earlier in the piece, is one of the most common methods of protest adopted by people from time immemorial. Second, the Supreme Court has overlooked the principle of statutory interpretation of ejusdem generis which states that where general words or phrases follow a number of specific words or phrases, the general words are specifically construed as limited and apply only to persons or things of the same kind or class as those expressly mentioned. Thus following specific terms such as explosives, inflammable substances, firearms, lethal weapons, poisonous gases, chemicals, radioactive substances or substances hazardous in nature, the general phrase by any other means of whatever nature necessarily has to be interpreted to be, by any means that are similar to explosives, weapons, poisonous gases or other substances which may not be known to man as on date. The general expression cannot be expanded to such a degree as to include the allegations of some mastermind conspiracy based only on the Prosecution’s conjectures and surmises.Third, in adopting an approach that widens excessively the scope and ambit of Terrorist Act under Section 15, the Supreme Court also fails to appreciate another principle of statutory interpretation that penal statutes must be subjected to strict interpretation by the courts so as to ensure that only acts that have been clearly defined as crimes are made punishable and any ambiguity is resolved in favour of the accused.Law, they say, is based on principles of prudence, reasonableness and equity. However, in the instant case all three have been defeated. Express speeches calling for violence have been ignored, and peaceful protesters have been punished. A perusal of the afore mentioned hate speeches is sufficient to understand the real cause of the Delhi pogrom, yet the court chose to divorce itself from reality and reason and instead took shelter behind the stringent conditions of Section 43-D(5) of the UAPA, the applicability of which in the instant case, the prosecution as well as the court, failed to justify. A very serious question that one must raise is whether citizens, in a country which claims to be a secular, sovereign, democratic, republic, who raise voices of dissent in the form of protests can be so casually termed as “terrorists”, particularly when they belong to the minority community and practice their religion openly? Sharjeel, at the end of the day, is an Indian and a Muslim, who could have led a cushioned life, but who instead chose to stand up to power not just for himself but for all Indian Muslims and all Indian citizens who believe that the CAA is arbitrary and unconstitutional. Posterity will be the judge of the injustice that has been meted out to him for exercising his constitutionally protected right.Rashmi Singh is a Delhi-based lawyer practicing primarily in the Supreme Court of India and the Delhi high court.