The crisis at the spot emerged when the protestors turned violent: Delhi High Court said in 2019 Jamia Violence Case

Delhi, India: On March 28, the Delhi High Court framed charges against Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others under the Indian Penal Code (IPC) in the 2019 Jamia violence case. The Court set aside the trial court’s decision to discharge the accused.

Justice Swarana Kanta Sharma was hearing the Delhi Police’s plea against the trial court’s decision to discharge the accused in the 2019 Jamia violence case. In the case, the accused-respondent contented that it was a peaceful protest and the accused were “either bystanders or were part of peaceful protest which is lawful under the constitution.” However, the Court noted, “the crisis at the spot emerged when the protesters turned violent and insisted on violating the law and marching to curfew bound area which in law they could not have done.”

“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 added.

Furthermore, the Court stated, “The beginning of pelting of stones, pushing, kicking and breaking of barricades, violent insistence on marching to a curfew bound area marked the beginning of the end for the peaceful protest for the group of people of assembly.”

“State did not engage in prior restraint nor had restrained the protesters to protest at the places where they had gathered to express their thoughts and convey their dissent. The protesters were asked to restrain from going to curfew bound area only,” the Court added.

The Court said, “The primary duty of the police force is to maintain law and order. The State was also duty bound to ensure that while some persons want to exercise their fundamental right to free speech and expression, the fundamental right to life of others was not infringed.”

The Court observed, “Needless to say, assemblies cannot be aimed at destroying the rights of others to achieve their own. 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. The violent intention and behaviour of the assembly was difficult to discern ahead of their so turning violent.”

The Court said, “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 observed, “the video clips on record and the transcript of the speech of one of the respondents namely Sharjeel Imam who was part of the unlawful assembly, who had delivered a provocative speech on 13.12.2019 in the Jamia University campus itself, and the subsequent violent conduct of the unlawful assembly and its members forced the police to ask the assembly to disburse, however, to no avail.”

Furthermore, the Court heard the State’s arguments for deletion of the trial court’s remarks against the investigating agency where the trial court said, “this Court (trial court) cannot but arrive at the conclusion that the police were unable to apprehend the actual perpetrators behind commission of the offence, but surely managed to rope the persons herein as scapegoats.” Furthermore, the trial court said that the investigating agency should have abstained from filing such an ill-conceived chargesheet qua persons whose role was confined only to being a part of a protest.”

The Court observed the trial court’s error and said that trial court’s remark that the State is supressing dissent “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.”

Furthermore, the Court held, “A protest cannot be allowed to endanger others, damage property, restrict essential services and such a protest cannot receive constitutional protection. 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 Court stated that the protestors were given an adequate warning from turning violent and their assembly, in view of the violence, had been declared unlawful but the protestors made a “conscious decision to remain part of violent mob.”

The Court charged Mohd Qasim, Mahmood Anwar, Shahar Raza Khan, Umair Ahmed, Mohd Bilal Nadeem, Sharjeel Imam, Chanda Yadav and Safoora Zargar for commission of offences punishable u/s 143, 147, 149, 186, 353 and 427 of the IPC and u/s 3 of the Prevention of Damage to Public Property Act. Furthermore, the Court charged Mohd Abuzar, Mohd Shoaib and Asif Iqbal Tanha u/s 143 of the IPC. However, the Court discharged the other accused charged under other sections of law mentioned in the chargesheet since there is not enough material against them to implicate them.

The Court concluded that the trial court “has however stated that the police can further investigate the matter and bring to book any other accused if so identified involved in the violence. The said finding is not disturbed by this Court, however, the impugned order is set aside in entirety regarding discharge of respondents herein.”