[Anti-CAA speech] Sharjeel Imam denied bail by Delhi court in sedition case

A Delhi court on Friday denied bail to Jawaharlal Nehru University (JNU) student Sharjeel Imam in the sedition case registered against him in connection with his December 2019 speech made during the protests against the Citizenship Amendment Act (CAA).

Additional Sessions Judge Anuj Agarwal said that the speech delivered by Imam at Jamia Milia University on December 13, 2019 was clearly on communal/divisive lines and could affect peace and harmony in the society.

"A cursory and plain reading of the speech dated 13.12.2019 reveals that same is clearly on communal/divisive lines. In my view, the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquility, peace and harmony of the society," the Court said.

The fundamental right of free speech and expression is placed at a high pedestal by our Constitution, but it cannot be cannot be exercised at the cost of communal peace and harmony of the society, the Court underscored while denying him bail.

After examining the relevant portion of his alleged speech, the Court noted that the fundamental right of ‘freedom of speech and expression’ as enshrined under Article 19 has been placed on a very high pedestal in constitution of this country.

Interestingly the judge said that the essence of freedom of speech has been well captured by famous British poet and intellectual John Milton.

"Give me the liberty to know, to argue freely, and to utter according to conscience, above all liberties,” the Court quoted Milton.

The order also quoted Swami Vivekananda as saying, "We are what our thoughts have made us; so take care about what you think. Words are secondary. Thoughts live; they travel far."

The Court, however, observed that the same Constitution places reasonable restrictions upon exercise of the right, among other things, on the grounds of public order and incitement to an offence.

“That apart, article 51A(e) of the Constitution also casts a fundamental duty upon citizens of this country to promote harmony and spread common brotherhood amongst all the people of India, transcending religious, linguistic and regional or sectional diversities. Therefore, it is no gainsaying that fundamental right of ‘freedom of speech and expression’ cannot be exercised at the cost of communal peace and harmony of the society,” it added.

As far as the question of Imam’s purported speech being seditious goes, the Court felt it required a “deeper analysis” at an appropriate stage.

But on a cursory and plain reading of his speech of December 13, 2019, it felt that it was “clearly on communal/divisive lines”.

“I am not inclined to grant bail to applicant/accused Sharjeel Imam at this stage. The accused cannot claim any parity with co-accused as his role is entirely different from other co-accused. Accordingly, the instant application moved on behalf of applicant/accused Sharjeel Imam for grant of regular bail stands dismissed,” it was held.

Earlier, the Court prima facie noted the evidence in support of the allegations with regards to the rioters being instigated by Imam’s speech of December 13, 2019 giving rise to rioting, mischief, attacking the police party etc to be “scanty and sketchy”.

“Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam,” the order stated.

Further, there was no evidence corroborating the version of prosecution that alleged rioters were a part of the audience addressed by Imam on the same day.

The Special Public Prosecutor also fairly conceded that at the present, there was no material available with the prosecution to show that Imam and other co-accused persons were members of any common social platform to fasten them with the aid of abetment.

“The essential link between the speech dated 13.12.2019 and the subsequent acts of co-accused is conspicuously missing in the instant case,” the order highlighted.

Accordingly, the Court underscored that the theory of the investigating agency had left “gaping holes” as regards rioting, mischief and attacking police thereby portraying an “incomplete picture” and the gaps were filled by resorting to “surmises and conjectures” or by essentially relying upon the disclosure statements of Iman and the co-accused.

“In either case, it is not legally permissible to build the edifice of prosecution version upon the foundation of imagination or upon inadmissible confession before a police officer. Once the legally impermissible foundation of imaginative thinking and disclosure statement of accused/co-accused is removed, the prosecution version on this count appears to be crumbling like a house of cards,” it noted.

However, the Court said there was sufficient grounds to deny him bail for offences of sedition under Section 124A IPC and for promoting enmity between religious groups under Section 153A.

Imam was accused of giving provocative speeches on December 13 and 15 in 2019 and January 16, 2020. It is the prosecution case that the speeches culminated in riots at several places. The present case dealt with speech on December 13, 2019 where he was alleged to have been seen instigating a particular religious community against the government by creating unfounded fears in their minds regarding Citizenship Amendment Bill (at the relevant time) and National Register of Citizens.

He was accordingly chargesheeted under Sections 124A (sedition) and 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) of the Indian Penal Code.

Imam is also facing cases pertaining to northeast Delhi violence of February, 2020, and is currently in jail.

[Read Order]