2019 Jamia case: Dissent is part of fundamental rights observes court while discharging Imam, 10 others

A Delhi Court on Saturday discharged former Jawaharlal Nehru University (JNU) student Sharjeel Imam, co-accused Asif Iqbal Tanha and nine others in connection with the violence that broke out near Jamia Millia Islamia University in December 2019.

The violence had erupted after a clash between Police and students protesting against the Citizenship Amendment Act (CAA). The FIR alleged 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.

Additional Sessions Judge Arul Varma at Saket district court 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. However, it framed charges of unlawful assembly and rioting against one of the co-accused named Mohammed Iliyas.

However, Imam, who is also an accused under the draconian Unlawful Activities (Prevention) Act (UAPA) in the conspiracy case related to the 2020 North-East Delhi riots case, will continue to remain in custody.

Imam, Tanha and Safoora Zargar are also accused in the Special Cell's case alleging larger conspiracy behind the Northeast Delhi riots of 2020.

The judge said that “it would be pertinent to underscore that dissent is nothing but an extension of the invaluable fundamental right to Freedom of Speech and Expression contained in Article 19 of the Constitution of India, subject to the restrictions contained. It is therefore a right which we are sworn to uphold.”

“The desideratum is for the investigative agencies to discern the difference between dissent and insurrection. The latter has to be quelled indisputably. However, the former has to be given space, a forum, for dissent is perhaps reflective of something which pricks a citizen's conscience. Conscience is the source of dissent,” the court said.

ASJ Varma underscored that to force accused persons to undergo the rigmarole of a long-drawn trial did not augur well for the criminal justice system of the country. “Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest,” the court said.

It stressed on the fact that “Liberty of protesting citizens should not have been lightly interfered with.”

Observing that mere presence at protest site without overt acts cannot lead to implication as accused, the judge said that the prosecution has ex facie been launched in a “perfunctory and cavalier fashion” against them.

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

“In the present case, it has been most unusual of the police to file one chargesheet and not one but three supplementary chargesheets, with really nothing new to offer. This filing of a slew of chargesheets must cease, else this juggernaut reflects something beyond mere prosecution, and would have the effect of trampling the rights of accused persons,” it said.

The court pointed out that there were no eyewitnesses who could substantiate the police’s version that the accused persons were involved in the commission of the offences.