A Delhi court’s decision on Saturday to deny statutory bail to activist Sharjeel Imam for speeches made during the movement against the Citizenship Amendment Act in 2019 and 2020 was based on legally tenuous grounds, experts say.

The order noted that “although the applicant did not ask anybody to pick weapons and kill the people but his speeches and activities mobilised the public which disrupted the city and might be the main reason in outbreak of the riots”.

Legal experts described the court’s reasoning as “perplexing”.

The charges

Imam has been charged with the offences under sections 124A (sedition), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence), 153B (imputation, assertions prejudicial to national-integration) and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) of the Indian Penal Code and section 13 (punishment for unlawful activities) of the Unlawful Activities (Prevention) Act.

He has been in jail for over four years now, since being arrested on January 20.

Imam had been booked for these offences for speeches he made in Delhi in December 2019 and in Aligarh, Asansol and Chakband in January 2020 during protests against the Citizenship (Amendment) Act and the proposed National Register of Citizens. According to the police chargesheet against him, Imam’s speeches had incited members of the Muslim community which had, in turn, triggered riots.

In May 2022, the Supreme Court had, in a landmark decision in a separate matter, stayed the sedition provision of the Indian Penal Code. It had particularly directed that all pending trials, appeals and proceedings with respect to section 124A “be kept in abeyance”.

Imam filed an application for bail before the Delhi court under Section 436A of the Criminal Procedure Code. This provision is popularly known as the statutory bail provision and prescribes that an undertrial is to be released on bail if they have been in custody for over half of the maximum period of imprisonment for the offence they are charged with.

Imam had contended before the court that keeping aside section 124A of the Indian Penal Code, following the Supreme Court’s 2022 decision, the maximum penalty under the other sections of the code that he was charged with is five years imprisonment and the maximum penalty under section 13 of the Unlawful Activities (Prevention) Act is seven years imprisonment.

Since he had already been in detention for four years, he was eligible for statutory bail.

He had in November 2021 secured bail from the Allahabad High Court in another criminal case that had been filed against him in Aligarh under sections 124A, 153A, 153B and 505(2) of the Indian Penal Code under the statutory bail provision.

On Saturday, however, the Delhi court dismissed Imam’s bail application.

Law vs ‘dictionary meaning’

The court’s reasoning rested on shaky grounds, legal experts told Scroll.

While the court admitted that it could not consider section 124A due to the bar by the Supreme Court, it rejected the application on the basis that Imam’s alleged acts and actions were seditious “in a normal dictionary meaning”.

“It is perplexing to decipher this dichotomy,” Delhi-based advocate-on-record and managing partner of Ayyubi Law Practices, Fuzail Ahmad Ayyubi told Scroll. “When the provision is not in use by the order of the apex court, given its admitted abuse, how could an allegation be termed seditious while denying bail?”

Another Delhi-based advocate-on-record Ibad Mushtaq said that “if dictionary meanings were to become a yardstick for restricting liberty of citizens, we wouldn't need laws at all”.

He added that ever since the insertion of section 124A into the Indian Penal Code in 1870, courts in India had given little clarity on the meaning of the term “disaffection” within the definition of sedition in section 124A.

Mumbai-based criminal lawyer Gaurav Bhawnani pointed out that under section 436A of the Criminal Procedure Code, it is permissible for a court to refuse statutory bail but only “for reasons to be recorded by it in writing”.

“Even if the court wanted to deny bail due to the seriousness of the alleged offences, it should have limited its reasoning to the other provisions of the Indian Penal Code and section 13 of the Unlawful Activities (Prevention) Act,” Bhawnani told Scroll.

Merits of the case

The court order also commented on the merits of the case against Imam, though that is outside its remit when adjudicating on a bail application.

The order described his activities as “disruptive” and noted that his speeches and activities “disrupted the city and might be the main reason in outbreak of the riots” in Delhi in February 2020. It added that “through inflammatory speeches and social media, [Imam] skillfully manipulated the real facts and incited the public in order to create a havoc in the city”.

The order went on to say that the “the words as used by [Imam] in his different speeches were so powerful that they captured the mind of the people of a particular community and incited them to take part in the disruptive activities which finally resulted into the riots”.

In spite of this, the order concluded by stating that “nothing stated in this order shall tantamount to an expression of any opinion on the merits of the case”.

Bhawnani said that the order was not well-worded. The court should have clarified that its findings regarding Imam were based only on the chargesheet against him by the police, he said.

Reluctance to grant bail

The order distanced itself from the Allahabad High Court’s favourable bail ruling for Imam by reasoning that even though both cases related to similar offences, they were registered in different cities and the facts in both were different. However, it then went on to record that the chargesheet against Imam in the present case involved the speech delivered in Aligarh too.

Calling this reasoning “ridiculous”, Bhawnani said that he has repeatedly come across sessions courts citing difference of facts as the rationale to differ from favourable bail orders by constitutional courts and deny bail.

“Sessions courts are generally reticent to give bail on grounds of prolonged incarceration,” he said.

Ayyubi agreed, pointing out that last weekend, Chief Justice of India DY Chandrachud had, at a public event, indicated that trial courts are reluctant to grant in bail in ordinary cases.

Chandrachud had earlier said that subordinate court judges are reluctant to grant bail due to the “fear of being targeted”.

“If in ordinary cases that hesitance is there, one can imagine how it will be magnified with sedition and UAPA cases,” said Ayyubi.

Mushtaq noted that the Supreme Court had clarified the application and ambit of statutory bail under section 436A of the Criminal Procedure Code in a judgment in July 2022 and even warned judicial officers that they would be taken off judicial work and sent for training if they don’t follow the judgment.

Imam’s bail application under another first information report registered against him which relates to the Delhi riots conspiracy case was scheduled for hearing on Monday at the Delhi High Court. However, it was not taken up due to one of the judges on the bench set to hear the matter being on leave.