A high-profile case has provoked debate about digital evidence and limits of state power, with activist Umar Khalid asserting before the Delhi High Court that mere membership of WhatsApp groups cannot be incriminating evidence. Charged with being a conspirator in the Northeast Delhi riots of February 2020, which resulted in the death of 53 people, and injury to more than 700 others, Khalid is said to have suffered in custody since September 2020. This case raises questions about the role of digital platforms in the administration of justice versus the broader implications for civil liberties.
The Allegations Against Umar Khalid
Umar Khalid, a student leader formerly of JNU and an avowed critic of the Citizenship Amendment Act (CAA), has been arrested under several charges, including under the Unlawful Activities (Prevention) Act (UAPA). The Delhi Police accuse Khalid, along with other activists, on WhatsApp groups such as the “Delhi Protest Support Group” (DPSG) of enabling instances of violence amidst CAA protests. The WhatsApp groups, the prosecution claims, were all geared towards a common conspiracy to overthrow the government and instigate communal riots.
The cross-section of allegations against Khalid included various sections of the Indian Penal Code (IPC) for rioting, unlawful assembly, sedition, and promoting enmity between groups, as well as UAPA provisions for conspiracy and terrorist activities. The accusation is that his alleged membership in the WhatsApp groups is proof of his intention to incite violence and disrupt public peace.
Khalid’s Defense: Passive Membership vs. Active Participation
According to claims made by Khalid’s legal team, headed by Senior Advocate Trideep Pais, these allegations are completely baseless. However, during the latest hearings before a division bench of Justices Navin Chawla and Shalinder Kaur, Pais contended that Khalid’s being a member of these WhatsApp groups does not constitute providing him a basis for criminal intent or active participation in any alleged conspiracy.
- Lack of Active Engagement: Pais pointed out that Khalid had never posted any incendiary or mobilizing messages in these groups. “Merely being in a group is not an indicator of any criminal wrong,” he said, stating that Khalid had sent only five messages to these groups, none of them incriminating.
- Hearsay Evidence: The counsel stated that a majority of the prosecution’s case was built on hearsay statements given by protected witnesses. One witness had said that another witness had told them that Khalid purportedly established certain groups; this was something dismissed by Pais as having no reliability whatsoever.
- Parity with Co-Accused: Pais also pointed out various co-accused persons like Devangana Kalita and Natasha Narwal, who were granted bail despite facing similar or worse allegations. Therefore, he cited this as a precedent for Khalid’s grant of bail as well.
- No Material Evidence: The defense stressed that nothing incriminating was reportedly recovered from Khalid, such as weapons or documents. Also, there is no evidence to suggest he destroyed CCTV evidence or committed any direct violent act.
Prosecution’s Counterarguments
The Delhi Police have opposed the bail application filed by Khalid on the ground that his participation far exceeded mere passive membership in WhatsApp groups:
- Coordinated Conspiracy: Special Public Prosecutor Amit Prasad argued that WhatsApp chats from the DPSG group demonstrate an overt conspiracy to ignite violence against the very idea of peaceful protest. Khalid’s speeches and other digital evidence were alleged to be part of this conspiracy.
- Incendiary speeches: The prosecution pressed the contention that Khalid’s speeches and those of the co-accused Sharjeel Imam incited public unrest. The speeches were alleged to have caused panic among people and disturbed public order.
- Digital Evidence: Much reliance was laid on digital evidence – WhatsApp chat and call records – by the police to bring their case against the accused. In their submissions, they contend that these records demonstrate the coordination among the accused in planning and executing violent activities.
Judicial Delays and Prolonged Incarceration
Pais noted that Khalid had been detained for 4.5 years without charges being framed or substantial progress made in the trial. With the prosecution listing more than 800 witnesses, it is likely to take years before the trial concludes.
In this context, defense counsel said such prolonged detention violates natural justice involving the right to a speedy trial and must also be taken into account while deciding on the bail plea for Khalid.
Legal Questions Raised
The case raises various legal questions with far-reaching consequences, most relevant duty:
- Admissibility of Digital Evidence: Can mere membership of WhatsApp groups be construed as evidence of criminal intent? Legal experts have debated whether a passive membership in these groups could entail an active participation in the alleged conspiracy.
- Freedom of Speech vs. UAPA: Some dissenters argue that attempted applications of anti-terror laws such as the UAPA against activists flux the line between legitimate dissent and terrorism, which is ultimately a suppression of democracy.
- Presumption of Innocence: The long-term detention of those accused without trial raises questions regarding the presumption of innocence, a pillar of criminal justice systems worldwide.
- Judicial Accountability: The slow pace of trials in politically sensitive cases just accentuates systemic inefficiencies in the Indian judiciary.
Broader Context: Anti-CAA Protests and State Response
The riots of February 2020 had the backdrop of nationwide protests against the CAA and the NRC which were at many levels considered discriminatory against Muslims. Activists like Umar Khalid became loud voices of protest against these views but were also slammed for instigating the riots. The government’s dealing with these protests has been condemned as all-high-handed and targeting dissidents.
The case had come to epitomize larger tussles with civil liberties and state power in India. It also reflects the growing curiosity with which digital platforms, such as WhatsApp, are going to be viewed by law, with the attendant issues of privacy and surveillance as well as freedom of expression.
Next Steps
The next hearing on Khalid’s bail plea has been adjourned by the Delhi High Court to March 4. While discussions continue, the case will remain the emotional focus of discussions for civil liberties, judicial accountability, and the use of digital evidence in criminal proceedings.
This battle between the judicial system and the government is in the view of Umar Khalid and his well-wishers not a matter of bail but defining the wrong system which indents its claws towards dissent. It is, for others, a test case of balancing national security with personal rights in the fast-digitizing world.
Everyone is going to watch how the judiciary will manage this very complicated intersection of law, technology, and civil liberties as the proceedings unfold.
About Author
Syeda Ayesha is a passionate 3rd year BBA LLB student at Sultan-Ul-Uloom College of Law in Hyderabad, with a special interest in criminal law and family law. She has built her academic journey on a solid foundation of legal principles, progressing from basic to advanced levels, and is eager to apply this knowledge in practice. Determined to gain practical experience, she is committed to learning more about the law. Ayesha is excited about the opportunity to work in a dynamic legal environment, which she sees as a valuable avenue for both personal and professional growth.
