No Place For Violent Action To Resist Govt Policy In Democracy: Delhi High Court Frames Charges Against Sharjeel Imam, Others In Jamia Violence Case

While framing charges of rioting and unlawful assembly against Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in 2019 Jamia violence case, the Delhi High Court has observed that protest by violent means can never be part of democracy.

“Though, in a democracy, there can be no question of dissent being suppressed or fundamental right of freedom of expression by peaceful means being infringed, however, at the same time, there is no place of violent collective action to register one’s anguish against ideological differences or resistance to a Government policy,” Justice Swarana Kanta Sharma observed.

Perusing the video of the protest on record, the court said that the acts of resistance being presented as normal by the accused persons were not peaceful resistance but violent protest which had turned into riots.

The court set aside, in entirety, the trial court order discharging the accused and disposed of the revision petition moved by Delhi police.

Justice Sharma framed charges against Mohd Qasim, Mahmood Anwar, Shahzar Raza Khan, Umar Ahmad, Mohd. Bilal Nadeem, Sharjeel Imam and Chanda Yadav under sections 143, 147, 149, 186, 353 and 427 of IPC as well as section 3 of Prevention of Damage to Public Property Act.

 They have been discharged of rest of the offences as per FIR since there was not enough material against them to implicate them under the said provisions.

The court however framed charges against Asif Iqbal Tanha, Mohd. Abuzar and Mohd. Shoaib under section 143 of IPC and discharged them of the other offences.

The court added that in case any evidence comes on record against any of the accused persons during trial regarding the offences they have been discharged of, the trial court may proceed as per law against them.

“It is, however, clarified that this Court has not returned any finding on the merits of the case and the observations made hereinabove are only for the purpose of deciding present petition,” it said.

Observing that there is a prima facie case of unlawful assembly and rioting, the court said that the video clips of the incident reveal that an “uncontrollable mob of students who had turned violent with dandas” were pelting stones continuously, pushing and pulling barricades and forcibly trying to go beyond the barricades which had been put up by the police to enforce rule of law.

The court added that the mob pulled out and damaged the road divider and sign board of Jamia Nagar police station and that the conscious presence and participation of the accused persons point out towards their being part of unlawful assembly and rioting.

“It was State’s duty to prevent rioting and violent action. If no timely action was taken and the police force would have allowed the public property being put on fire and rioters being allowed to flout orders of Section 144 Cr.P.C. and reach the place where curfew had been imposed, the State would have been accused of dysfunctional and ineffective Government machinery who could not control eruption of violent collective action. The videos will prima facie reveal that the level of opposition which was encountered by the law and enforcing agency was probably not expected by them,” it said.

Furthermore, the court said that even if the purpose of the assembly was to lawfully protest against the Government policy of NRC and CAA, the case would have been different had it been confined to protest by peaceful means without use of force and violence in order to march to a curfew bound area.

“In the present era of independent social media, in case the violent mob would have been allowed to march to the streets of Delhi to the Parliament which was a curfew bound area, there was apprehension that more persons could have gathered, endangering the law and order situation in Delhi,” it said.

Justice Sharma further acknowledged that the student community, being citizens of India, have equal right to freedom of speech and expression and protest as all other citizens.

However, the court said that while the law protects the right to express one’s views and protest peacefully, it does not protect or guarantee the right to protest and demonstrate violently, threaten the safety of others and damage the public property or threaten and damage their own campus and personal safety of others including the law enforcing agency.

“The protesters turned violent and started pelting stones, breaking barricades, standing on the barricades, pushed the barricades against the police officers due to their enormous power of presence and large number, they succeeded in crossing first barricade which in itself prima facie shows the crisis or emerging of situation which could have affected the population and constituted a threat to the organized life of the citizens which the State is bound to protect,” the court said.

The court also emphasised that the assemblies cannot be aimed at destroying the rights of others to achieve their own and therefore, the right to freedom of peaceful assembly cannot be aimed at destruction of rights and freedom of others who were not part of that protest.

“Though, the State has to be accountable for their action in case they infringe the fundamental right of freedom of speech and expression and use of excessive force, if any, disproportionate to the threat at the spot, the protesters also are accountable under the Constitution and the duty which runs parallel to their fundamental rights to ensure that the assembly had to be peaceful, by peaceful means and not in violation of law of the land,” it said.

Justice Sharma also added that though the right of freedom of expression cannot be criminalized, the threat to life of others and public and private property preventing public servants from doing their duty, the actions of violence and damaging property will certainly attract criminal law.

The court further observed that the peaceful assembly has no right to damage public or private property and disrupt organized day to day life of other citizens who are not part of the protest.

It added that the acts of violence and violent speech that instigates violence and endangers rule of law, damage public property and peace are not protected under the Indian Constitution.

“The circumstances surrounding the present incident which has been captured in the electronic evidence in the video clips and multiple statements of the witnesses who were present at the spot indicate that the protesters were clearly informed that the privilege of peaceful protest and protection guaranteed under Article 19 of Constitution of India would come to an end in case of persisting violence and the protesters indulging in violating the law under various sections of Indian Penal Code and other relevant provisions of law in force,” it said.

While disposing of police’s plea, the court expunged the observations made by the trial court against the investigation and the investigating agency.

“The remarks by the learned Trial Court at the stage of charge, regarding the dissent being suppressed by the State should have been avoided as at this stage it would not have been clear to the learned Trial Court itself also as to whether it was the peaceful dissent suppressed by the State or State was trying to curb the menace of violence and spreading of violence and disturbance in the area concerned and working to protect others from violent protesters and ensure rule of law to those who were not part of this violent protest,” it said.

On February 4, the trial court had discharged Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar, Mohd. Abuzar, Umair Ahmed, Mohd. Shoaib, Mahmood Anwar, Mohd. Qasim, Mohd. Bilal Nadeem, Shahzar Raza Khan and Chanda Yadav in the case. However, it had found sufficient evidence to frame charges against Mohd. Ilyas.

Days thereafter, the police approached the High Court challenging the discharge.

The case is connected to the incidents of violence at Jamia Milia Islamia University in December, 2019. The FIR alleges offences of rioting and unlawful assembly - sections 143, 147, 148, 149, 186, 353, 332, 333, 308, 427, 435, 323, 341, 120B and 34 of IPC were invoked in the case.

The police had filed a chargesheet against Mohd Ilyas on April 21, 2020. A second supplementary chargesheet was then filed against 11 other accused persons, who have been discharged in the matter.

A third supplementary chargesheet was also filed recently on February 1, 2023, during continuation of arguments on charge. The prosecution tried to establish that the witnesses had identified the accused persons on the basis of some photographs.

The trial court in its order observed that Delhi Police failed to adduce fresh evidence and rather sought to present old facts in the garb of “further investigation” by filing another supplementary chargesheet.

It further said that there were no eyewitnesses who could substantiate the police’s version that the accused persons were in any way involved in the commission of the offences.

However, days after passing the order, the trial court judge recused himself from hearing a similar case pertaining to the violence citing “personal reasons.”

Advocates Rajat Nair and Dhruv Pandey appeared for Delhi Police.

Senior Advocate Rebecca John and Advocates M.R. Shamshad, Abubakr Sabbaq, Arijit Sarkar, Nabeela Jamil, Kajal Dalal, Aparajita Sinha, Javed Hashmi, Farid Ahmad, Shahnawaj Malik, Talib Mustafa, Ahmad Ibrahim, Ayesha Zaidi, Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhri, Ayush Shrivastava, Ritesh Dhar Dubey, Praavita Kashyap, Anushka Baruah, Chinmay Kanojia, Pravir Singh and Adya R. Luthra appeared for respondents.

Title: State v. Mohd. Qasim & Ors.

Citation: 2023 LiveLaw (Del) 272

Click Here To Read Order