A letter to Lady Justice: Umar Khalid had some faith in your blindfold – is he not worth defending?

Dear Justitia,

A few words have been long overdue to you, the goddess of justice. This has never been a linear relationship. We are used to some aberrations, inordinate delays, disappointments and even betrayals. But as Indian citizens today, there is an increasing sense of abandonment and despair.

Over the decades, there have been several instances when you were found wanting when it came to punishing those who violated the principles of law, justice and humanity. Yet, we kept the faith.

But today, you are unable to protect even those who fight for justice. Those who raised their voices against the government’s unconstitutional attempts to undermine the sanctity of citizenship were under no illusion about the risks they ran. After all, reducing minorities to second-class citizens has been a fundamental item on the ideological agenda of the ruling dispensation.

My friend Umar Khalid was well aware that his participation in the protests against the Citizenship Amendment Act, 2019, would not be tolerated, that it would come at a cost.

Despite it being a non-violent and inclusive movement in defence of the essence of the Constitution, Khalid knew well that the regime would flex its muscles. But he had some faith that you would intervene in the defence of those fighting the good fight. He, and others like him, believed in that blindfold you wear. That you would not be swayed by majoritarian populism, that you would not be persuaded by hate.

Perhaps you do not remember, but before your blindfold came to symbolise the impartiality of law, it originated from a 15th century satirical depiction by Albrecht Dürer of your blindness to the rampant injustices unfolding in front of you.

What we see on display today in the name of justice seems like satire again.

What about your scales, Justitia? The judgement of the special bench of the Delhi High Court on October 18 denying bail to Khalid is testament to the fact that your scales are far from being evenly balanced. Such is the nature of laws like the Unlawful Activities Prevention Act.

The judgement reads more like a prolonged caveat or even an apologia. To quote from it: “No doubt, Art. 11(1) of the Universal Declaration of Human Rights states that every person accused of any penal offence is presumed to be innocent until proven guilty. While this is a rudimentary tenet in criminal law jurisprudence which has also been upheld by the Hon’ble Supreme Court. However, provisions under the UAPA [Unlawful Activities (Prevention) Act], NDPS [Narcotic Drugs and Psychotropic Substances Act], POCSO [Protection Of Children from Sexual Offences Act] and certain other special acts contain a contrary presumption, which has an inevitable effect on the scheme of provisions for bail as laid down by the respective statutes.”

This “contrary presumption” tips your scales in favour of those who wield power against the powerless. Laws like these, as admitted by the judgement, render “the degree of satisfaction” to be recorded by the court lighter than it would be under normal criminal procedure. What weighs heavier under the Unlawful Activities Prevention Act is “first impression”, leaving ample room for the public prosecutor to impress a bench with lies and fabrications.

The judgement reads: “Under the UAPA, it is not just the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity; not just the intent to strike terror but the likelihood to strike terror.”

This is a blank cheque in which even purported crimes such as “like-minded left parties and members of civil society” supposedly resolving to support each other in the protest against the Citizenship Amendment Act can be recorded as incremental.

This allows the government to criminalise any and every act of protest. It transforms secular ethos into a “secular facade”, the unprecedented participation of Muslim women in the protests into “gender cover” and the coverage by the remnants of media with a spine into “media cover”.

This practically leaves no lawful room for democratic dissent without it being termed a “conspiracy”.

Finally, your sword, Justitia. In an absurd twist of logic, you allow it to be swung against a speech by Khalid that to the judges “prima-facie appeared to be incriminating per se and inflammatory” in its “content, context and use of certain phraseology”. This is the “provocative speech” at Yavatmal in Maharashtra that the prosecutor contends “depicted his conspiratorial mindset”.

The judgment’s interpretation of Umar’s use of the expressions “Inquilabli Salam” (Revolutionary Salute) and “Krantikari Istiqbal” (Revolutionary Welcome) was surprising. It appears that his crime boils down to him forgetting to add a prefix, as the judgement reads: “Revolution by itself isn’t always bloodless, which is why it is contradistinctly used with the prefix – a ‘bloodless’ revolution. So, when we use the expression ‘revolution’, it is not necessarily bloodless.”

In his speech to a gathering of protesters in February 2020, Khalid said:

  “We won’t respond to violence with violence. We won’t respond to hate with hate. If they spread hate, we will respond to it with love. If they thrash us with lathis, we keep holding the tricolor. If they fire bullets, then we will hold the Constitution. If they jail us, we will go to jail singing, Saare Jahaan Se Acha Hindustan Hamara.”  

Did this speech need a prefix? What about the choicest of suffixes like “Goli maaro...ko” [Shoot them dead] and speeches by the likes of Bharatiya Janata Party leader Kapil Mishra and Union Minister Anurag Thakur that the sham of an investigation into the 2020 Delhi riots has willfully ignored? Your sword has spared them.

This sounds personal but that is because beyond the struggle for justice, equality and democratic rights, this is also about my closest friend being in jail. This is about seeing his loved ones yearn for him on Eid, on Diwali. Or even while something as mundane as sharing a joke, the sigh and wishing he was there.

In materials science, ductility is defined by the degree to which a material can sustain tensile stress before failure. I have met Umar Khalid in jail and during brief appearances in court. We speak of events as they unfold on the national canvas, we speak of books and cricket, of films of which he has only read reviews.

We speak of relationships, break-ups and other gossip. We speak of his anecdotes of jail and its monotony. I have rarely met someone made of any metal that is more enduring than Umar Khalid as he oscillates between hope and despair but almost always with a smile.

I feel helpless when he spots the anxiousness on our faces and consoles us from beyond the greasy glass panels of the mulaqat room. From what he says, I gather that he no longer measures time in today or tomorrow. He locates himself along a larger arc of history that the likes of him – who stand up to power, particularly those from the minority community who refuse to give in to injustice – will have to endure.

Civil rights leader Martin Luther King Jr has said, “The arc of the moral universe is long, but it bends toward justice.” But till then, we have to persevere in this republic of endurance.

Why am I sharing this? Because, my personal anguish notwithstanding, you remain the last hope for millions who are powerless, mute and in fear. After 75 years, there is a sinking feeling that all pillars of democracy, including the press, have bent. Unless you break free from this spell and even your scales, there is little hope left.

They call Khalid a “veteran of sedition” in the chargesheet. Another such veteran of sedition who took to the streets against immoral and unjust laws was the Father of the Nation. It is time that you, Justitia, defend those who walk his path.

Anirban Bhattacharya is Delhi-based researcher, activist and social commentator.

Also read:

‘Every idea is an incitement’: Where is the line between democratic protest and sedition?