Delhi Riots: How The Police Is Using FIR 59 To Imprison Students And Activists Indefinitely

NEW DELHI — On March 6, ten days after Delhi’s worst communal riots in a generation, Arvind Kumar a sub-Inspector of the Narcotics Cell of the Delhi Police’s Crime Branch filed a complaint that would come to be known as First Information Report 59/2020.

In his complaint, Kumar claimed to have received information that the riots were a conspiracy planned by former Jawaharlal Nehru University student (JNU) Umar Khalid and his associates who had given provocative speeches, and collected arms and ammunition, while staging protests with women and children. 

In the three months since it was first filed, FIR 59 has morphed from naming two people for four serious but bailable offenses of rioting, being armed with a deadly weapon, unlawful assembly, read with criminal conspiracy, into what appears to a roving witch-hunt against students and activists who protested against the Narendra Modi government’s controversial citizenship law in the months preceding the Delhi riots .

As things stand, FIR 59 now accuses at least 14 people, including Safoora Zargar, an MPhil student, Meeran Haider, a PhD candidate, and Gulfisha Fatima, an MBA graduate, and three other students, of some of the gravest offenses in the land including murder, sedition and terrorism. Their lives are caught amidst a series of FIRs, bail hearings, court orders, and incarceration in the middle of the coronavirus pandemic. 

FIR 59 is one of 750 filed in connection with the Delhi riots, but lawyers say it is one of the most visible examples of how the Delhi Police , which reports to Home Minister Amit Shah , is using the riots as a pretext to place some of the Modi regime’s most charismatic and outspoken critics under indefinite incarceration. 

The fact that FIR 59 now attracts the draconian Unlawful Act Prevention Act (UAPA) has meant that those protesting their innocence have summarily been denied bail. The police have refused to move against members of the ruling Bharatiya Janata Party (BJP) despite widely circulated videos of them inciting crowds and leading angry protests chanting “shoot the traitors” has only added to the impression that the investigation into the riots is politically motivated.

The Delhi Police has said it is conducting an “impartial” investigation, and all arrests are based on “scientific and forensic evidence including video footages, technical and other footprints.”  

Fifty two people were killed in the violence, according to the police, most of them Muslim. Media reports indicate the majority of homes and shops that were looted and torched belonged to Muslims. At least 14 mosques were damaged or burnt. No temple suffered a similar fate. On 7 June, the Delhi Police said that it had arrested 1,400 people, including 620 Hindus and 683 Muslims, and charged 510 people, including 205 Hindus and an equal number of Muslims. 

When Safoora Zargar, a 27-year-old student of Jamia Millia Islamia, was granted bail in connection with another police case pertaining to the Delhi riots, but she was re-arrested that same day under FIR 59 and subsequently denied bail despite being heavily pregnant and her lawyer arguing that health complications meant she feared a miscarriage in jail.

Similarly, Ishrat Jahan, a 32-year-old lawyer and Congress Party member was first arrested by the police on 26 February in connection with another police case pertaining to the Delhi riots, and granted bail only on March 21. Yet the same day she was granted bail, the police re-arrested her under FIR 59.  

In a bail hearing for Zargar, her lawyer Trideep Pais called it an “all encompassing” FIR in which students on the frontlines of protesting the Modi government’s controversial citizenship law, the Citizenship Amendment Act (CAA) or CAA, and the National Register of Citizens (NRC), were made “pawns.” 

The arrests begin  

The first people arrested under FIR 59 were Mohammed Danish, Mohammed Ilyas and Mohammed Parvez Ahmed, members of the Popular Front of India, an Islamist organisation the police claims is responsible for fanning violence and funding the riots. The PFI is not banned in India.  

At the time, FIR 59 was limited to rioting, being armed with a deadly weapon,  unlawful assembly, read with criminal conspiracy.                                                  

Mohammed Tahir, a Bengaluru-based lawyer, who is representing all three men in Delhi, said that his client is not the Danish mentioned in the FIR 59. And even though all the sections were bailable when they were arrested, Tahir said that Danish was in police custody for five days, and Ilyas and Ahmed for a day. 

“This was completely illegal,” he said, asking why the police had asked a judge to keep them in custody when the sections were bailable. 

At the bail hearing on 13 March, Tahir said, “I was not given a copy of the remand application but when the order for remand was granted, I requested for the copy. I realized that all sections are bailable offenses.”

Not only did Metropolitan Magistrate Prabh Deep Kaur grant all three men bail, she gave Investigating Officer till 17 March to file a written explanation as to why they were not offered bail when all the sections under FIR were bailable. 

Tahir says the Delhi Police did not file that reply.

Instead, the sections in FIR 59 were increased from four to 18, including murder, attempt to murder, and sedition, four in the UAPA, four in the Prevention of Damage to Public Property Act and two in the Arms Act. 

Tahir considers his clients lucky that they were granted bail in FIR 59 before the UAPA was invoked in April. Those who were subsequently arrested under FIR 59 over the summer are still incarcerated. 

“When they (Delhi Police) could not get anything on the PFI, they turned their attention to the students. They have not shown any connection between any of the accused to each other,” Tahir, the lawyer, said.

Rearrested 

FIR 59 now includes members of the PFI, a former Aam Aadmi Party councillor who is accused in murder of a government staffer, the president of the Jamia Millia Islamia Alumni Association, a former Congress Party councillor, a social activist, six students, an MBA graduate, and a 27-year-old man who makes mops for a living in northeast Delhi. 

Ishrat Jahan, a lawyer and Congress Party member, and Khalid Saifi, a businessman who was leading a campaign called United Against Hate, two people who had protested against the Citizenship Amendment Act, were arrested under FIR 59 on March 21. 

Both had been previously arrested under FIR 44/2020 lodged at Jagatpuri Police Station on 26 February for rioting, obstructing a public officer, assaulting a public officer, and attempt to murder.

Jahan was first denied bail by Additional Sessions Judge Naveen Gupta on 28 February, and then granted bail by the Additional Sessions Judge Manjhusa Wadhwa on 21 March. 

Saifi, despite his lawyer Rebecca John alleging that he was tortured in police custody after he was arrested on 26 February, was denied bail by Judge Wadhwa who said that a co-accused had given a statement against him. 

Sarwer Jahan said that her sister called her from Tihar Jail at around noon on 21 March and said the she was being arrested for murder under FIR 59. It was around four in the afternoon that she was granted bail in FIR 44, but now there was no leaving jail.

Referring to the case of the PFI members who were kept in police custody even when FIR 55 was only four bailable sections, Serwar Jahan said, “They were reprimanded a lot by Prabh Deep Kaur. I feel they added all these other sections just to cover up that lacuna.”

“When UAPA was invoked later (in April), Ishrat was never notified. It was only after 10-15 days, we were told when she was produced in court through video-conferencing from the jail because of the coronavirus,” Sarwer said.

On 30 May, Additional Sessions Judge Dharmender Rana granted her bail for 10 days to get married starting from 10 June.

“We submitted the guest list to the Delhi Police,” said Sarwer. “The wedding went well. It was just the family members.”

Students arrested 

Meeran Haider, a Ph.D student at Jamia Millia Islamia, and president of the youth wing of the Rashtriya Janata Dal in Delhi, was arrested under FIR 59 on 1 April. Metropolitan Magistrate Prabh Deep Kaur on 3 April sent the 35-year-old for custodial interrogation after the Delhi Police said that it was required to unearth a larger conspiracy behind the Delhi riots. 

Haider filed for bail on 15 April, but one day before the hearing, his lawyer Akram Khan said that he learnt from a colleague about the far graver crimes that were added to the FIR. When he asked the police officials about it, they confirmed. Khan withdrew the bail application in the hearing before Metropolitan Magistrate Ankita Lal on 20 May, and he has not moved another application because he feels it is important to move “strategically” after UAPA was invoked.  

“This is normal practice over here (Delhi). We don’t get any notice or intimation before a hearing,” he said. “For India, I can say that investigation is carried out in a very secret manner. They don’t tell you anything or show you any document before filing the chargesheet.”

Gulfisha Fatima 

Gulfisha Fatima, an MBA graduate from the Institute of Management Education in Ghaziabad, was arrested on 9 April in FIR 48/2020 registered at the Jafrabad Police Station on 24 February.  

In a bail hearing on 1 May, the police told a Metropolitan Magistrate that the 28-year-old was also booked under FIR 59, court documents show. After her bail application was dismissed by the magistrate on 3 May, Fatima applied for bail before a sessions judge on 8 May. 

On 13 May, Additional Sessions Judge Naveen Gupta granted her bail in FIR 48, but she remained in custody in FIR 59. 

Her lawyer Mehmood Pracha says that  Fatima was under “illegal custody” and that is why he filed a Habeas Corpus petition in the Delhi High Court on 15 May instead of applying for bail for FIR 59. The arguments for the petition ended on 12 June. 

On 28 May, while the Habeas Corpus petition was in the Delhi High Court, Additional Sessions Judge Dharmender Rana extended Fatima’s judicial custody till 25 June. 

“The basic aim is to suppress people and dissuade them from speaking against the CAA and NRC. One section of the government is trying to scuttle the protests to protect the Constitution,” said Pracha. 

Safoora Zargar

Safoora Zargar, an M Phil student at Jamia Millia Islamia University, was arrested on 10 April under FIR 48. After the Metropolitan Magistrate Deepakshi Rana granted her bail on 13 April, the 27-year-old who is pregnant was rearrested in FIR 59 that same day. 

In a bail hearing on 18th April, Magistrate Rana asked the Delhi Police for a detailed reply on the exact allegations against Zargar and set the next hearing for 21 April. The day before the hearing, the Delhi Police invoked UAPA against Zargar and her bail was dismissed. 

Zargar, who was five months pregnant at the time, and suffering from health complications according to her lawyers, applied for bail on 26 May. Following two days of hearing on 30 May and 4 June, Additional Sessions Judge Dharmender Rana denied her bail. In his order refusing bail, Judge Rana said a prima facie case of her conspiring to carry out a road block was made out. 

“When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire,” he said .

Asif Iqbal Tanha 

Asif Iqbal Tanha, a student of the Persian language at Jamia Millia Islamia, was arrested on 17 May in FIR 298/19 of the Jamia Nagar Police Station, six months after it was registered on 16 December following an anti-CAA march that ended in violence on 15 December. 

The 24-year-old was arrested under FIR 59 on 20 May. 

Tanha was granted bail in FIR 298/19 by Additional Sessions Judge Gaurav Rao on 28 May, but he remained incarcerated under FIR 59. 

While remanding Tanha to judicial custody until 25 June under FIR 59, Additional Sessions Judge Dharmender Rana said the Delhi Police “investigation seems to be targeted towards one end.” 

“Perusal of the case diary reveals a disturbing fact,” said Judge Rana. “The investigation seems to be targeted only towards one end. Upon enquiry from Inspector Lokesh and Anil, they have failed to point out what investigation has been carried out so far regarding the involvement of the rival faction.”

Natasha Narwal and Devangana Kalita 

Natasha Narwal and Devangana Kalita, students of Jawaharlal Nehru University, were arrested on 23 May in FIR 48. 

Narwal and Kalita, founding members of Pinjra Tod, a women’s collective accused of organising anti-CAA protests near the Jafrabad Metro Station one day before the communal riots, were granted bail by Metropolitan Magistrate Ajeet Narayana on 24 May for FIR 48, who said there was no evidence of them assaulting a police officer and the “accused were merely protesting against NRC and CAA and did not indulge in any violence.” 

They were re-arrested on the same day under FIR 50/2020 registered at Jafrabad Police Station on 26 February, which has graver crimes including murder and attempt to murder. 

Narwal, 32, was arrested on 29 May under FIR 59. 

Kalita, 30, was arrested on 30 May in FIR 250/2019 registered at Daryaganj Police Station after an anti-CAA protest ended in violence on 20 December, 2019. It contains 16 IPC sections including rioting, disobeying a public servant, and assaulting a public servant, and two Prevention of Damage to Public Property Act sections.

Kalita was granted bail on 2 June by Metropolitan Magistrate Abhinav Pandey, who, echoing Metropolitan Magistrate Ajeet Narayana, said, there was “no direct evidence” that showed the accused had assaulted a public officer. He also said the CCTV footage did not show that she was involved in violent activity, and nothing incriminating was found on her laptop or phones.

Kalita was arrested in FIR 59 on 5 June. 

Narwal and Kalita remain incarcerated under FIRs 59 and 50.

‘A cat and mouse game’

FIR 59, which is marked sensitive, is not available online.

Lawyers say they are playing a “cat and mouse” game with the Delhi Police to get information regarding their clients. Their primary source of information is when the Delhi Police replies to their bail applications or when the police file remand applications. This is when they find out the crimes of which their clients are accused. 

Seema Misra, a Delhi-based lawyer, said her 27-year-old client Shadab Ahmed was first arrested under FIR 60/2020 of Dayalpur Police Station on 6 April, and it was only when she was perusing the Delhi Police’s reply to her bail application under that FIR, did she find out that Ahmed had also been arrested in FIR 59 on 20 May. 

Misra said that Ahmed is a resident of Jagat Puri who makes mops with his uncle. Her only source of information about his case in FIR 59 have been the Delhi Police’s replies to her bail application and their applications for custody. 

“It’s all very vague,” she said. 

In a hearing in Additional Sessions Judge Dharmender Rana’s court on Monday, while Public Prosecutor Irfan Ahmed argued that the Delhi Police needed more time to investigate the persons and crimes under FIR 59, Misra and other lawyers said they did not even have the application stating the reasons for extension in order to counter them.  

“How will they respond if you don’t give them a copy of the application?” Judge Rana asked the Public Prosecutor.