“Ever since I got news that Kapil Mishra has become a minister, I have been considering moving out of Delhi,” said 57-year-old Mohammad Ilyas, laughing nervously. “Now I feel I am in danger.”
Ilyas is among the handful of citizens who approached the courts after police refused to register their complaints and file a first information report against Mishra for his alleged involvement in the riots that engulfed North East Delhi in February 2020. Fifty-three people died in the violence. The majority of them were Muslim.
During the riots, Justice S Muralidhar of the Delhi High Court had urged the Delhi police to consider registering first information reports against Mishra and other Bharatiya Janata Party leaders for inflammatory remarks that he said would qualify as hate speech. That very day, Muralidhar was transferred out of the Delhi High Court by the BJP-led Union government.
Five years later, Mishra is yet to be booked by the police for allegedly being involved in the riots. On the contrary, the controversy gave his political career a thrust. Last week, Mishra was appointed minister of law and justice in the Delhi government.
Many of those who had approached the courts seeking action against him have given up hope. Only a few patient petitioners are awaiting justice, as judges have been sitting on their applications for nearly five years now.
Allegations against Mishra
Communal riots erupted in North East Delhi on February 23, 2020 – the result of clashes between the supporters of the Citizenship (Amendment) Act and those opposing it. The act provided a way for undocumented migrants from Pakistan, Bangladesh and Afghanistan to gain Indian citizenship – as long as they were not Muslim. Passed in December 2019, it provoked protests across India.
According to Delhi Police, 20 activists, students and local politicians who participated in the protests went on to orchestrate the riots. Twelve of them – all Muslim – have been behind bars for or about five years, with their trials yet to begin.
However, a fact-finding committee constituted by the Delhi Minorities Commission has said that the riots were sparked by inflammatory remarks by BJP leaders, including Kapil Mishra.
Scroll reviewed six applications filed before magistrate courts in 2020 asking for first information reports to be registered against Mishra. All the complainants allege that Mishra played a direct and active role in inciting violence against Muslim communities during the riots.
The complainants state that Mishra was present at locations where violence occurred. They allege that he was accompanied by groups of armed men and made hate-filled speeches in various parts of North East Delhi on February 23 and 24.
His speeches, they allege, included slogans such as “desh ke gaddaro ko, goli maro saalo ko” (shoot the traitors), “mullo ke do sthan, kabristan ya Pakistan” (Muslims only belong in two places: the cemetery and Pakistan) and “katwe murdabad” (down with Muslims – “katwe” being a derogatory term for Muslims in Hindi). Mishra is also alleged to have declared that “mullas” (another derogatory term for Muslims) and protestors need to be taught a lesson.
One complaint alleged that after Mishra visited Dayalpur in North East Delhi on February 24, a day after the riots began, armed men opened fire on protestors. Another alleged that Mishra and associates blocked roads and destroyed carts belonging to Muslims in Kardampuri in North East Delhi on February 23.
Mishra and his associates also attacked and fired bullets at protestors in Kardampuri on the afternoon of February 24, two complaints alleged.
Scroll attempted to contact Mishra by phone, WhatsApp, SMS and email to seek his response to the allegations made about him. This story will be updated if he responds.
Five of the complaints also alleged police complicity: instead of stopping Mishra, the police allegedly joined Mishra and his associates in attacking protestors. One of complainant alleged that the police gave Mishra a megaphone to address his supporters.
All the complainants allege that when they went to their local police stations to file first information reports against Mishra, other local BJP leaders and police personnel, the authorities refused to take any action.
“I went to the police station about five-seven times,” Zakir Malik, one of the complainants, told Scroll. “They [policemen] said that they don’t want to lose their jobs so they cannot do anything.”
Mohammad Ilyas said that he approached the police three times asking for a first information report to be lodged against Mishra and others. Each time he was told that the police would register his complaint only against unspecified “rioters”.
“They refused to register an FIR against those who I had seen and named and threatened to lock me up,” Ilyas said.
All six complainants sent copies of their complaints to the Commissioner or Deputy Commissioner of Police. Five of them sent copies to the Lieutenant Governor of Delhi and four sent copies to the prime minister and the Union home minister. Four sent copies to the National Human Rights Commission, one to the Delhi chief minister and one to the Delhi Minorities Commission. But the complainants allege that no action was taken.
The refusal to register a first information report against Mishra is illegal. As per Indian law, when a verbal or written complaint alleging a cognisable offence is made to the police, they are bound to register a first information report and investigate the matter.
The Supreme Court has affirmed in several judgements that in such a situation, no preliminary inquiry can be conducted before the first information report is registered.
Cognisable offences under Indian law are serious crimes that threaten public safety or order. The police can register a case and make arrests for such crimes without court approval. The crimes Mishra is accused of are cognisable offences.
A midnight transfer
On February 26, 2020, during the riots, activist Harsh Mander approached the Delhi High Court seeking action against Mishra and other BJP leaders who had made inflammatory speeches that allegedly incited rioting.
A bench of Justices Muralidhar and Talwant Singh heard the petition later that day. Even though the Union government had not been made a party to the matter, Solicitor General Tushar Mehta, representing the Union government, attended the hearing.
During the hearing, Muralidhar showed Mehta video clips of speeches by Kapil Mishra and BJP MP and Union minister Anurag Thakur.
In one of these clips dated February 23, Mishra could be heard giving an ultimatum to the police to clear a road that was allegedly blocked by demonstrators protesting against the Citizenship (Amendment) Act. Deputy Commissioner of Police Ved Prakash Surya is seen standing beside Mishra as he addresses a crowd.
“We will have to descend into the streets”, the BJP leader says in the clip, and “we will then not even listen” to the police if they did not clear the roads by the time the visit to Delhi of United States President Donald Trump concluded.
Trump was in Delhi from the morning till the evening of February 25, 2020.
Muralidhar noted in his order that the speeches of Mishra, Thakur and two other BJP leaders – Parvesh Verma and Abhay Verma – fitted the definition of hate speech under Sections 153A and 153B of the Indian Penal Code. Section 153A deals with promoting enmity between different groups and section 153B covers damage to national integration.
In response, Mehta told the court that the situation was not “conducive” or “appropriate” for filing of first information reports against the leaders. Dismissing the objection, Muralidhar had strongly urged the Delhi police to file first information reports against Mishra, Thakur, Parvesh Verma and Abhay Verma for hate speech by the next day.
That very day, just before midnight, Muralidhar was transferred by the BJP-led Union government to the Punjab and Haryana High Court. The next day, the matter was re-allocated to a different bench of the Delhi High Court.
Mehta reiterated to the new bench that the situation was not conducive for the first information reports to be registered. Unlike Muralidhar, the bench seemed to accept Mehta’s argument and did not press the police. It adjourned the matter till April. However, it was forced to hear the case on March 6, after Mander had appealed the Supreme Court against the long adjournment. The Supreme Court directed that hearings be expedited.
However, the Supreme Court declined to directly take up the matter of registering first information reports against Mishra and others, as Mander sought. This was after Mehta told the court that Mander in a public speech had made derogatory remarks about the court.
After March, though, the matter was not heard by the High Court till July 2020 – the High Court violating the Supreme Court’s direction to expedite hearings in spirit, if not in letter. In the meanwhile, the Delhi police filed an affidavit before the court that it had found no evidence that Mishra, Thakur or Parvesh Verma had instigated or participated in the riots.
Eventually, on July 27, 2020, Mander withdrew his petition from the High Court. He opted instead to move a magistrate’s court to seek that first information reports be registered against Mishra and the other BJP leaders. Magistrates – the lowest tier in the judiciary – are empowered to order the police to investigate cognisable cases under Section 156(3) of the Code of Criminal Procedure.
Mander told Scroll that since his petitions for action against Mishra and other BJP leaders were not moving in the High Court or the Supreme Court, he decided to try the lower court.
He filed an application under Section 156(3) before the magistrate’s court in Patiala House Courts in January 2021. The application is still pending. It has been listed 25 times so far before five different magistrates.
In December 2021, the Supreme Court directed the Delhi High Court to decide within three months another plea demanding that a first information report be registered against Mishra and the three other BJP leaders.
Three months later, in March 2022, the Delhi High Court dismissed on narrow technical grounds another petition, this one by Communist Party of India (Marxist) leader Brinda Karat making the same demand for action against Mishra and other BJP leaders.
Stuck in court
Mishra’s case is not unique. Riots victims too have struggled to get first information reports registered against BJP leaders and police officials.
Delhi-based advocate Mehmood Pracha, who has represented several riot victims, told Scroll that he had filed at least 15 applications in 2020 under Section 156(3) for riot victims who were denied first information reports by the police. Several of these sought that Mishra be booked.
“Only four of those applications have led to the courts ordering the registration of FIRs against some individuals,” Pracha said. “The rest are either pending or withdrawn by the complainants out of frustration or harassment by those against whom they are seeking action.”
In none of the four successful applications was a first information report ordered against Mishra or any other BJP leader.
Out of the six applications seeking first information reports against Mishra – all filed by Pracha – that Scroll studied, two are still pending in magistrate courts. A third one was decided last month, with the court noting that the police had either “failed to make an inquiry against” Mishra or “tried to cover up the allegations against” him. However, it directed the complainant to approach a special MP/MLA court to seek action against Mishra.
Special MP/MLA courts in Delhi are courts designated to handle criminal cases against sitting and former MPs and MLAs for faster trials.
Until then, the journey of this application through the court system had been tortuously slow: it had been listed 40 times before six different magistrates at the Shahdara district court in Karkardooma between November 2020, when it was filed, and its adjudication last month.
Among two pending applications before magistrate courts, the one by Ilyas was listed 24 times before seven different judges of the North East district court in Karkardooma after being filed in November 2020. The court directed last year that the application be filed before an MP/MLA court. The MP/MLA court has since listed the matter 13 more times before two different magistrates and is yet to decide on the application.
Progress has been even slower in the other pending application against Mishra – by Jami Rizvi, a lawyer in his 50s. It has been pending in the Shahdara district court for almost five years. It has been listed only 19 times before three different magistrates.
Under the Criminal Procedure Code, there is no time limitation for deciding such applications. But the long pendency of these applications risks jeopardising a future police investigation that may be pursued if the applications eventually succeed, said Pracha.
“Five years is long enough for the evidence against the accused to go cold,” he said. “They may remove potential evidence. Besides, technical evidence like CCTV footage or call detail records may expire.”
Then why have these matters been pending for so long?
Pracha said that sometimes judges appear not inclined to decide these matters. “We have argued these applications before multiple judges in the same application by now,” he said. “So many times, even after hearing our full arguments, the judge kept on giving dates and ultimately they were transferred. We then have to start over again.”
He pointed out that the state prosecutors would often prolong proceedings. They would either attempt to paint the applications as malicious and dishonest or claim that they had already filed a first information report on the matter in which they had booked some other person or unknown persons. “Of course, they never book the actual culprits in these FIRs, which is why we had to file applications under Section 156(3),” Pracha added.
Pracha said that the long pendency of the applications was worse than if they were to be rejected. “In that case, we could approach the sessions court in appeal,” he said. “Instead, the applications are just kept hanging.”
A personal toll
Of the six applications seeking the booking of Mishra that Scroll studied, three were dismissed between 2022 and 2023.because the petitioners failed to appear in courts. One of these three applicants could not proceed with her application after she was arrested in a riots-related case, according to Pracha. She is currently out on bail but could not be contacted by Scroll.
It was clear that the other two did not want to press ahead with their demand for action against Mishra.
One of them, Gulfam, said that “a lot had happened five years ago that I don’t want to remember” and that he wants “to put everything behind”. The other, Zakir Malik, expressed a lack of confidence in the justice system. “What is the point of trying to get Mishra booked?” he asked. “Judges, courts – everything is under their control. Those who speak openly face no consequences and those who do nothing are in jail.”
Rizvi, whose application for a first information report against Mishra has been pending in court for over four years, expressed frustration with the long legal process. “The dilemma and pain I have gone through over the years – the situation is still the same,” he said.
Ilyas, who has also been waiting for over four years for a decision, said that he had faced constant threats and harassment, mostly from the police, since 2010.
Last year, around 10 people that he alleged were police personnel in plain clothes forcibly entered his home. “They behaved rudely with me, turned everything in my house upside down and threatened to demolish my house and drive me away if I don’t withdraw my complaint,” he said.
On another occasion, he recalled, a police officer had threatened to press charges against him under the stringent anti-terror law, the Unlawful Activities (Prevention) Act if he proceeded with his application.
Ilyas alleged that two of his brothers, who were living in Dehradun when the riots took place, were booked by the Delhi police for the murder of a police constable during the riots as retribution for his application. “They were eventually bailed out but they had to give up their businesses and have now moved to Delhi,” he said. “They have to regularly go to court for hearings in the matter.”
He claimed that he had contacted several police officers to complain about this, all the way from the local station house officer to the deputy commissioner of police. “But the police has never done anything to protect me,” he said.
Ilyas said that he had never been directly threatened by Mishra or anyone associated with him or the BJP. “But local police personnel who are my friends have warned me that there is political pressure on the police to withdraw my application,” he said. “They have recommended that I stay inside my house, otherwise I will be abducted.”
For the security of his seven-member strong family and himself, he has installed solid metal gates for his house. “I don’t leave my house too much,” he said.
Mander told Scroll that he too had faced state persecution for his attempts at legal action against Mishra too. “Soon after I approached the Delhi High Court for registration of an FIR against Mishra, the Delhi police filed an affidavit before the Supreme Court alleging that I've made contemptuous and derogatory remarks against the Supreme Court,” he said. “The Delhi police also accused me of provoking the Delhi riots through a speech at the Jamia Milia Islamia university in a riots-related chargesheet.”
He referred to the proceedings that various government departments had initiated against him and his social welfare organisations since 2021. “The Central Bureau of Investigation, the Enforcement Directorate, the Economic Offences Wing of the Delhi Police, the Income Tax Department, the National Commission for Protection of Child Rights – they have all filed cases against me,” Mander said.
Apart from pursuing legal action against Mishra, Mander has been one of the most strident critics of communal politics over the last two decades.
Flickering hope
Why have the complainants stuck with their struggle for legal action against Mishra and others, then, in spite of these troubles?
Ilyas admits that he does not have much faith in courts “and the system”. Yet, he retains a sliver of hope. “If there is ever an inquiry conducted on my complaint and the truth comes out, riots will stop,” he said. “Whoever was guilty should be punished and the truth should come out.”
With Mishra’s ascension into the Delhi government, though, Ilyas’ morale is flagging. He admitted that he may “sell his house and land in Delhi, move to Kolkata and forget the case.”
Mander too accepted that he doesn't expect the courts to pull up Mishra. “I understand what is happening in the country,” he said. “With five years having passed, it is clear that there is no will to punish hate speech by Mishra, even though it led to the riots.”
Mishra has been appointed as Delhi's Law and Justice Minister – he will oversee the administration of subordinate courts in the city. Mander said this was a “clear message: not only is there impunity for the worst hate speech but you will be rewarded for it.”
However, one “cannot give up on moving the police and the court”, Mander said. “As citizens who believe in the Constitution, it is our duty to make demands from the system.” He said that he would see through his application in the magistrate court.
Rizvi put up a stronger front: he said that “the time will come when everything will be in the public domain”. This was also grounded in what he called a “firm belief in the Indian Constitution and in Indian law”.
Did this belief get shaken up by the pendency of his case for five years and Mishra’s appointment as a minister? “Not at all,” he said. “I’m very hopeful about our country.”
Five years ago, the Indian capital saw intense riots in the wake of protests against the Citizenship (Amendment) Act. Of the 53 people killed, more than two-thirds were Muslim. As part of this special series, Delhi 2020, Scroll looks back at the violence and how the Modi government used it to tarnish the very idea of peaceful protest.
