'Ideological Drivers Of Alleged Conspiracy' : Why Supreme Court Denied Bail To Umar Khalid & Sharjeel Imam

The Supreme Court, while denying bail to Umar Khalid and Sharjeel Imam in the Delhi riots larger conspiracy case on Monday (January 5), held that their roles were not episodic but “architectural”, placing them at the top of the chain of command of the alleged conspiracy.

A bench comprising Justice Aravind Kumar and Justice NV Anjaria made a distinction between the roles attributed to them and the other co-accused. It stated that while the allegations against Khalid and Imam indicate a "central and directive role" in "conceptualising, planning and coordinating" the alleged larger conspiracy behind the Delhi riots of February 2020, the roles of co-accused Gulfisha, Haider and others are merely subsidiary or facilitative in nature. 

As per the judgment authored by Justice Kumar, the Imam and Khalid are the alleged masterminds of the larger conspiracy and the materials by the prosecution in this regard are "direct, corroborative and contemporaneous". 

The Court stated that for the purpose of bail under Section 43D(5) of the Unlawful Activities Prevention Act, it has only to see if the prosecution has presented a prima facie believable case. At the stage of bail, the Court cannot evaluate the defence arguments, and has confined its scrutiny to the prosecution's case.

Role attributable to Khalid and Imam in general 

1. Possessed command authority: Stated to have exercised command and authority to mobilise or influence individuals within or outside their immediate circle.

It is stated that the chargesheet reveals that there is a vertical chain of command wherein conspiratorial-level decisions and strategic directions were allegedly emanated from them.

"At the outset, Umar Khalid and Sharjeel Imam are prima facie attributed a central role and alleged to be ideological drivers of the alleged conspiracy. The material relied upon against them is predominantly in the nature of speeches, meetings, digital communications, and alleged strategic deliberations, commencing immediately after the passage of the CAB/CAA. The charge-sheets attribute to them the role of formulating the protest strategy, including the alleged transition from sit-in demonstrations to chakka jams, selection of locations, and articulation of the broader political objective sought to be advanced. Their alleged acts are thus situated at the planning and preparatory stage, extending over a prolonged period."

As against this, the Court said that co-accused Gulfisha, Meeran, Shifa Ur Rehmand and others have no "independent capacity" to mobilise resources or exert organisational leverage. Therefore, they don't present the same systematic risk.

"In contradistinction, the remaining accused, namely Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan, Shadab Ahmad, Athar Khan, and others are consistently described as local-level facilitators. Their alleged involvement is site-specific and operational, confined to particular localities such as Seelampur, Jafrabad, Chand Bagh, Jamia, and Shaheen Bagh. The allegations against them relate primarily to on-ground mobilisation, logistical coordination, funding at the local level, stockpiling of materials, and execution of directions allegedly received from above, rather than formulation of the overarching strategy."

Conclusion: "Such allegations[ as against Umar Khalid and Sharjeel Imam], when supported by preliminary material, compel heightened caution regarding the possibility of interference with witnesses or reactivation of dormant networks."

2. Court can't determine at bail stage whether allegations satisfy ingredients of "terrorist act": Although the Court did not go into the ultimate determination, it holds that the scrutiny has to be whether the alleged acts are capable, at least prima facie, of engaging the statutory conception of threats to security and public order at the national level.

The Court also held that the use of the phrase "by any other means of whatever nature" in Section 15 of the UAPA to conclude that terrorist act is not confined to conventional forms of violence only. 

"Apart from death or destruction of property, the provision expressly encompasses acts which disrupt supplies or services essential to the life of the community, as well as acts which threaten the economic security of the nation. This reflects Parliament's recognition that threats to sovereignty and security may arise through conduct that destabilises civic life or societal functioning, even in the absence of immediate physical violence."

The Court held that the speeches attributed to Sharjeel Imam, and Umar Khalid's speech explaining the distinction between a chakka jam and a dharna, prima facie attracted the statutory conception of threat to the security of the State under Section 15.

3. Continued detention of alleged masterminds required to protect larger security interests: The Court reasoned that the continued detention of the "architects" of conspiracy may be required to safeguard broader security interests and deter future acts. It therefore says that Article 21 can't be applied uniformly to all accused persons without considering the individual circumstances.

"It is well recognised that Article 21 rights, though not absolute, require the State and the Court to justify continued custody with reference to the specific individual before it. Treating all accused identically, irrespective of their roles, would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances. The constitutional mandate demands a differentiated inquiry: where prolonged custody disproportionately burdens those whose roles are limited, the balance between individual liberty and collective security may call for conditional release, while the same balance may tilt differently for those alleged to have orchestrated the offence." 

It therefore held that where evidentiary strength varies materially, the need for continued detention would also vary and henceforth justified in the case of Khalid and Imam.

Individual roles attributed :

Sharjeel Imam

Formation of the WhatsApp group, Muslim Student of JNU(MSJ), was the brainchild of Imam immediately after the CAA Bill was approved. He was in contact with a radical communal group known as Students of Jamia (SOJ), which was engaged in distributing pamphlets in various mosques in Delhi against the Babri Masjid verdict. Imam was invited to a meeting, which allegedly was convened with the objective of conspiring to incite "chakka jam", and Umar Khalid attended that meeting, etc.

The Court says that the role attributed to Sharjeel is not episodic, as the prosecution has placed him at the inception of a mobilisation strategy and traces a continuing course of conduct from early December 2019 through January 2020. 

Therefore, his role is :

1. coordinator and mobiliser at the inception and in the first phase 

2. special material placing him at Jamia through CDR locations

3. Statement of protected witnesses attributing to commencing a differentiated chakka jam at Shaheen Bagh with a plan to expand to other areas

4. speeches exhorting disruptive chakka jam and choking essential supplies 

"The charge-sheet refers, inter alia, to the creation of the WhatsApp group “Muslim Students of JNU” and its “core members”, to mobilisation through pamphlets distributed in specific localities, to participation in meetings, to the delivery of speeches at multiple places, and to efforts aimed at establishing or sustaining blockade-style protest sites. The High Court's individual role note also proceeds on the basis that the appellant engineered the first phase of events from 13.12.2019 to 20.12.2019, and relies upon contemporaneous electronic records in WhatsApp groups and chats as part of the material pointing towards planning and mobilisation. The same note refers to chats dated 07.12.2019, suggesting planning for mass mobilisation and links that planning to the commencement of the first phase of events on 13.12.2019."

It also rejects the argument that Sharjeel Imam's case rests only on speeches, as he was found in the chain of conspiracy from creation to the strategy for disruption.

"The appellant has attempted to frame the allegation as one resting solely on speech. The record, at least as placed by the prosecution, does not permit such reduction. The prosecution case is of a chain comprising: (i) creation and administration of mobilisation platforms; (ii) dissemination of written material intended to galvanise participation; (iii) meetings and coordination; and (iv) public exhortations articulating a strategy of disruption. "

Further, it states that Imam's speeches do not merely reflect ideological disagreement with the State but show an intent of paralysing civic life and choking essential supplies.

"Further, even within the speech related material, the prosecution emphasis is not on ideological disagreement with the State or on political criticism. The emphasis is on a proposed method of paralysing civic life and choking essential supplies, articulated as a deliberate strategy and linked to a wider mobilisation narrative. Whether this ultimately crosses the final line from protected expression to criminal conduct, and whether the prosecution's interpretation withstands trial scrutiny, are matters for final adjudication. They cannot be conclusively decided at the bail stage without trespassing into forbidden terrain."

Umar Khalid-orchestration of the protests and resultant riots 

The Court says the role of Umar Khalid is architectural, which started with mobilisation and indoctrination, institutionalisation through committees and digital platforms and then expansion of protest sites into permanent blockades, preparation for escalation. Resultantly, the coordinated chakka jams and widespread violence. 

"The role attributed to Umar Khalid is not of a late entrant nor of a peripheral sympathiser. It is that of an organiser an coordinator who, according to the prosecution, supplied the “method”, the “timing”, and the “linkage” between dispersed sites and actors."

It mainly attributes chakka jam to have been caused by Khalid, which are distinct from dharna. The Court relies on the prosecution-protected witnesses' statement that Khalid at Jamia on 13.12.2019 had explained the difference between chakka jam and dharna and directed the initiation of chakka jam at Gate 7 of Jamia and at Shaheen Bagh with reference to expansion "at the right time".

The Court says that this statement does not reflect "mere association" but a statement of direction and role allocation.

"The factual record placed by the prosecution repeatedly returns to a distinction that is central to the case: the differentiation between a conventional dharna and a chakka jam. This is not treated as semantics. It is treated as strategy. A dharna may be expressive; a chakka jam, as alleged, is disruptive by design. The prosecution case is that the sustained choking of arterial roads, replication of blockade sites, and the movement of crowds from minority clusters into mixed population areas were not accidental expressions of dissent, but calibrated acts meant to generate confrontation, overwhelm law enforcement, and create conditions for violence." 

It also rejects the defendant's argument that he was not present when the alleged conspiracy took place. 

"In a phased conspiracy, physical absence at the final scene is not the end of the inquiry; it may, at best, shift the inquiry upstream, to see whether the accused is linked to the preparatory and coordinating stages."

The bench further says that the continuous meetings over a period of time suggest continuity of role, although it steps back from deciding whether the meetings were conspiratorial. 

Conclusion: "Having regard to the prosecution material as placed, including the chronology of meetings, the alleged articulation and propagation of the chakka jam strategy, the operation of coordinating committees and groups, the protected witness statements alleging preparatory and escalation-related discussions, the pleaded movement of protest activity into mixed-population zones, and the alleged systemic disruption of civic life in the National Capital, this Court is satisfied that reasonable grounds exist for believing that the accusations against Umar Khalid are prima facie true." 

The Court also said that it cannot consider the defence of Khalid that his Amaravati speech was advocating non-violent protests. It held that the speech could not be examined in isolation from the other acts allegedly forming part of the conspiracy. The Court observed that conspiracies are often outwardly articulated in the language of non-violence, and therefore, a speech by itself cannot be treated as either incriminating or exculpatory.

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