The Delhi High Court on Wednesday asked the police whether setting up protest sites was enough to invoke the Unlawful Activities Prevention Act against those accused in the case pertaining to the 2020 riots in the national capital, Live Law reported.

A division bench of Justices Navin Chawla and Shalinder Kaur made the remarks after the police opposed the bail petition of eight activists accused in the matter, citing chats found on the messaging application WhatsApp related to the protests against the Citizenship Amendment Act.

“Is it your case that only setting up of a protest site is good enough for UAPA [Unlawful Activities Prevention Act] or is it your case that protest site which resulted in a violence is good enough for a case under UAPA?” the bench asked, according to Bar and Bench.

“But most importantly, for us, it is the intent, under UAPA, which has to be established,” it added.

The eight activists – Umar Khalid, Sharjeel Imam, Mohd. Saleem Khan, Shifa ur Rehman, Shadab Ahmed, Athar Khan, Khalid Saifi and Gulfisha Fatima – had moved the High Court seeking bail in the case.

They have been in jail for over four years.

The activists were booked under sections of the Indian Penal Code, Prevention of Damage to Public Property Act, Arms Act and the Unlawful Activities Prevention Act in connection with the clashes that broke out between February 23 and February 26, 2020, among supporters of the Citizenship Amendment Act and those opposing it in North East Delhi.

The violence had left 53 dead and hundreds injured. Most of those killed were Muslims.

The Delhi Police have claimed that the violence was part of a larger conspiracy to defame Prime Minister Narendra Modi’s government and was planned by those who organised the protests against the amended Citizenship Act.

On Wednesday, Special Public Prosecutor Amit Prasad, representing the Delhi Police, showed the court several WhatsApp messages, Live Law reported.

He claimed that the “entire conspiracy was executed through multiple WhatsApp groups”, The Indian Express reported.

When Prasad referred to messages between two persons who were not named as accused in the matter, the bench asked: “How can you leave these two?” It added that the police were relying on their messages to establish its case.

The court also said that many were protesting a law and might have felt that even a chakka jam, or road blockade, was a valid form of protest, according to Bar and Bench. It asked whether organising a chakka jam would also be enough to attract the Unlawful Activities Prevention Act.

“You culled down the conspiracy that there are WhatsApp groups,” the bench said. “In the WhatsApp groups, [if] there are instigation and a hint of violence and violence actually happens, till then if they are involved, you may say UAPA is attracted.”

It added: “But when you draw attention...your argument is well they were organising protest sites. Is that good enough?”

The bench directed Prasad to provide a table showing which WhatsApp groups each of the eight activists was allegedly part of, according to The Indian Express. It also instructed the police to provide a chart listing which meetings each accused person allegedly attended.

The court will continue hearing the matter tomorrow.

At the previous hearing on Tuesday, the Delhi Police urged the bench to take a “very strict view” on the bail applications of the eight activists. It also claimed that the riots were a “conspiracy” that was “clinical, pathological” and planned “by forces inimical to India”.

The eight activists sought bail primarily on the grounds of delay in their trial and also argued for parity with the other co-accused in the case – student activists Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal – who had been granted bail earlier.

The High Court had granted bail to the three of them in June 2021. Subsequently, the police moved the Supreme Court against the bail. However, the top court dismissed the petition.