Delhi riot: Disclosures naming politicians, professors not admissible evidence in court, experts say

Reports over the weekend that two Opposition politicians, two academics, a filmmaker and a student leader have been named in the disclosure statements of three women accused of playing a key role in the February riots in Delhi set off a storm of recrimination on social media. To many government supporters, this appeared to be proof of a deep-seated plot behind the violence that led to at least 53 deaths and left hundreds injured.

These disclosure statements were made by Devangana Kalita and Natasha Narwal, founders of the Pinjra Tod student group, and management graduate Gulfisha Fatima. They have been accused of conspiring to spark the riots and booked under the draconian Unlawful Activities (Prevention) Act.

Their disclosure statements, attached to a supplementary chargesheet filed by Delhi Police in one of the riots cases, name Communist Party of India (Marxist) leader Sitaram Yechury, Swaraj Abhiyan leader Yogendra Yadav, Delhi University Professor Apoorvanad, Jawaharlal Nehru University professor and economist Jayati Ghosh, filmmaker Rahul Roy and former student leader Umar Khalid.

Initial media reports suggested that the politicians and academics identified in the statements were accused in the case as well. However, the Delhi Police on September 13 clarified that Yechury, Yadav and Ghosh had not been arraigned as accused. Significantly, this statement did not mention Khalid, Roy or Apoorvanand.

On Sunday night, Khalid was arrested under the Unlawful Activities (Prevention) Act after having been questioned for nearly 11 hours.

However, criminal lawyers stay that these purported disclosure statements cannot be considered as evidence in court. Even though the police claim that the three accused women have confessed to their involvement in the alleged crimes, statements made to the police in custody are inadmissible by law, experts say: only statements made before a magistrate are admissible.

The one exception is provided under Section 27 of the Evidence Act, where a statement can be considered as evidence if it leads the police to establish a fact relevant to the crime that they did not know about before the statement was recorded.

Neha Rathi, advocate on record at the Supreme Court, said that a disclosure statement is of value only if made by a person who is listed as a witness and deposes the facts as mentioned in the statement in court during trial. “But mere disclosure statements have no evidentiary value,” she said.

Added MV Swaroop, a lawyer in Chennai: “The magistrate can use [these disclosure statements] only to frame charges or decide whether to discharge the accused but these statements cannot be used as evidence during trial.”

Swaroop said that naming a person in a disclosure statement did not amount to them being an accused in the case. “Accused are only those against whom an FIR or chargesheet has been filed,” he said.

Courts have also made it clear that disclosure statements, even if they are in the form of confessions, have to be corroborated with other pieces of evidence as per Section 157 of the Evidence Act.

The disclosure statements by the three women were attached to a supplementary chargesheet filed by Delhi Police in the case pertaining to first information report number 50/2020, that Scroll.in has accessed.

What the FIR says

The FIR, filed on February 26, relates to the sit-in protest in Jafrabad in North East Delhi, the epicentre of the violence. The FIR alleged that around 4 pm on February 25, a mob armed with sticks, iron rods, bricks, stones and bottles gathered and shouted slogans criticising the amended Citizenship Act outside Jafrabad metro station. Ignoring repeated appeals by the police to disperse, the mob threw stones at police vans, forcing the police to fire tear gas shells. The crowd fired bullets, leaving several policemen and civilians injured, the FIR said.

Since mid-December, protests had started in Delhi against the amended law, which introduced a religious test for Indian citizenship. Critics said was discriminatory towards Muslims. The protestors were peaceful, though they had been met with violence from the police and even from gunmen firing bullets at them. But at the end of February, after these clashes between Hindutva supporters and protestors in North East Delhi, riots broke out across the area. At the end of three days of violence, the majority of the dead were Muslim. Fourteen mosques and a dargah were damaged by rioters.

However, many of those who have been questioned in the riots cases alleged that the Delhi Police seem to be working on the assumption that the protests had been organised not to defend Constitutional rights but merely to provoke the February violence.

The Delhi Police filed the first chargesheet in the Jaffrabad violence case on June 2. News reports about the supplementary chargesheet surfaced around September 12.

The first chargesheet did not contain these purported disclosure statements. Devangana Kalita and Natasha Narwal, both aged 31, recorded statements with the police on May 24 and May 26, the supplementary chargesheet shows. At the end of their statements on May 24, both Kalita and Narwal wrote: “I refuse to sign.” But their signatures appeared in the statements recorded on May 26, according to the supplementary chargesheet.

Gulfisha Fatima’s statement was recorded on July 29 and was signed by her.

Opposing the CAA

In their statements, Kalita and Narwal allegedly say that they were given directions to oppose the Citizenship Amendment Act.

“In the month of December after passing CAA [Citizenship Amendment Act] Jaidi Ghosh, Professor Apurva Nand, Rahul Roy had explained that we have to protest against CAA/NRC for which we can go any extreme due to which we can through the Govt and Umar Khalid had also given some tips for doing protest against CAA/NRC,” the supplementary chargesheet says, quoting from Kalita’s purported statement.

The people referred to as Jaidi Ghosh and Professor Apurva Nand are presumably economist Jayati Ghosh and Delhi University professor Apoorvanand.

Fatima in her purported statement as shown in the chargesheet said: “...Va yojana ke mutabik is bhid ko bhadkane va uttejit karne ke liye bade bade neta va vakeel aane lage jisme Umar Khalid, Chandra Shekhar Ravan, Yogendra Yadav, Sitaram Yechury, va vakeel Mehmood Pracha, Chaudhary Mateen aadi…” According to the plan, to instigate and excite the crowds, big politicians and lawyers started to come like Umar Khalid, Chandra Shekhar Ravan, Yogendra Yadav, Sitaram Yechury and lawyer Mehmood Pracha and Chaudhary Mateen.

Yechury, Yadav and Apoorvanand have dismissed the allegations. Yechury described the Delhi Police’s actions “illegitimate, illegal”. He said that the Bharatiya Janata Party was “scared of legitimate peaceful protests by mainstream political parties and are misusing state power to target the Opposition”.

Apoorvanand said that the supplementary chargesheet “only seems to be furthering the political agenda of discrediting the protestors”. He added, “Their act of having planned a protest is being treated as a conspiracy to violence, in which me, along with others, are projected as having abetted that cause, without any basis in law or facts.”

Media leaks

As the police have continued their investigation into the riots cases, several media reports have carried purported confessions by accused people. This led the Delhi High Court to issue a notice to the Delhi Police seeking an inquiry into their alleged misconduct “leaking” sensitive information about investigations to media outlets, The Indian Express reported on August 25.

The notice was issued after the counsel for Asif Iqbal Tanha, a student at Jamia Milia Islamia who is an accused in one of the cases. The “sole aim of such disclosures appears to be to vilify and severely prejudice the fair trial rights” of the accused people, the petition said.

A ‘conspiracy’

The Delhi Police in several chargesheets have claimed that the violence was part of a well-planned conspiracy to defame Prime Minister Narendra Modi’s government. In an affidavit filed in the Delhi High Court on July 13, the Delhi Police said that it has registered 751 cases relating to the violence and filed chargesheets in 200 of them.

In the affidavit, the police went a step further and claimed that the people protesting the Citizenship Amendment Act had secessionist motives and were using “the façade of civil disobedience” to destabilise the government.

But for all its sweeping claims, what evidence does the police have to show?

While they are yet to file a chargesheet in the main conspiracy case, Scroll.in had reported on how three pivotal chargesheets fail to mention Bharatiya Janata Party leader Kapil Mishra and his ultimatum to the police on February 23 threatening violence. On that day, Mishra addressed his supporters barely a kilometre from the Citizenship Amendment Protest in Jafrabad. In the presence of a senior police officer, he said that if the police failed evict the protestors, his supporters would have to do the job. His speech raised tensions in the area and precipitated skirmishes that afternoon.

Moreover, the Delhi Police chargesheets, filled with identical disclosure statements from the people accused, failed to establish a conspiracy. These statements too had not been recorded in front of a magistrate.

Identical statements

Strikingly, the disclosure statements of accused Devangana Kalita and Natasha Narwal on May 24 contain nearly identical sentences. They start in a similar manner, stating that Kalita and Narwal have one brother each and met each other along with a person named Paroma Roy.

“Jo protest sthalon par karya karne ke liye Jaidi Ghosh aur Professor Apoorvanand va Rahul Roy bolte rehte the aur Umar Khalid jo JNU ke aeitehaas vibhag mein padta hai aur apne United Agianst Hate group ke saath milkar CAA kanoon va anya ke baare bolta rehta hai aur December ke mahine mein Professor Apoorvanand va Rahul Roy ne hume samjhaya ki CAA & NRC kanoon ka hume iska viroodh karna hai,” both statements read.

At the protest sites, Jaidi Ghosh, Professor Apoorvanand and Rahul Roy used to tell us what work to do there. Umar Khalid who studies in Jawaharlal Nehru University’s history department used to speak about the CAA law and others along with his United Against Hate group. In December, Professor Apoorvanand and Rahul Roy made us understand that we have to go against CAA and NRC.

Both statements go on to add that on the directions of Apoorvanand and Roy, the members of the Pinjra Tod collective and the Jamia Coordination Committee, a group of students and alumni of the Jamia Millia Islamia university, started protests in North East Delhi. “Hume batlaya gaya tha ki aisa protest karo ki secular lage,” both statements read. We were told to make the protests look secular.

Apoorvanand said that Jamia Coordination Committee had started 20 to 25 protests in Delhi, both disclosures read. “Is aandolan ka maksad Bharat sarkar ki chhavi ko aise prastut karna hai ki vah musalmanon ke khilaf hai aur protest 24 ghante jaari rakhna hai…” the statements read.

The aim of this protest is to show that the Indian government is against Muslims and that the protest has to be run for 24 hours.

Both statements claim in an identical manner that that Kalita and Narwal received directions from Apoorvanand, which they would implement, and that Umar Khalid took an interest in their protest after which they held secret meetings.

The statements claim that Kalita and Narwal had instructed women protestors to keep red chilli powder handy to be used against the police in case of a clash.

“17 February ko hume massage mila ki jab Trump aayega toh hum chakka jam karke dangon ka mahaul bana denge aur puri Delhi mein danga phaila denge,” both statements claim. On February 17, we got a message that (US President Trump) would come (to India) so we will have to block the roads and create the atmosphere of a riot and spread riots across Delhi.

The statements then claim that in the garb of a candle march, they gathered women from Seelampur to stage a sit-in by the Jafrabad metro station.

On February 25, the police stopped the crowds next to Crescent School while they were heading towards Maujpur from Jafrabad after which they instigated riots in the nearby lanes, the statements claim. “...Jisme hathiyar liye hue log bhi the aur main CAA & NRC ke khilaf alag alag jagah ho rahe dharna pradarshan mein bhi jata rehti hoon,” both statements read.

Where there were people with weapons and I used to go to different protests against the CAA and NRC.

At the end of the statements, both Kalita and Natasha wrote: “I refuse to sign.”

The other statements recorded on May 26 by Kalita and Narwal are also nearly identical. These statements consist of similar details as the ones recorded on May 24 but start off by mentioning how Pinjra Tod was formed and later speak of their involvement in the protests against the Citizenship Amendment Act. Here too, both mention “Jaidi Ghosh, Professor Apoorvanand and Rahul Roy” and Umar Khalid in the same order as they did in the May 24 statements. Both statements claim that former Seelampur MLA Mateen Ahmad regularly visited the area.

“Hume JNU ki scholars batlakar bhashan dilvaye jaate the taaki kam padhe likhe logon ko bargalaya ja sake va humari baton ka jyada asar padhe jo humne CAA ko galat dhang se logon ko samjhaya va unhe lagne laga ki yeh kanoon Muslim viroodhi hai…” the statements read.

We used to give speeches as JNU scholars so that the less educated people could be tricked and our words would have more impact. We wrongly explained the CAA and made them feel that this is against Muslims.

Both Kalita and Narwal signed the statements recorded on May 26, the chargesheet shows.

Gulfisha Fatima’s statement

Another accused person, management graduate Gulfisha Fatima recorded her disclosure statement on July 29, the chargesheet shows. The statement starts by stating that Fatima met many people at protest sites in Shaheen Bagh, Jantar Mantar and ITO, which is how she came in contact with Pinjra Tod members “Promila Roy, Rumsa, Subhashini, Nilofer, Natasha Narwal, Devangana Kalita”.

It states that Kalita and Narwal had told Fatima that they had to oppose the Citizenship AmendmentAct and National Register of Citizens and that they would go to any limit to destabilise the government and get communities to face each other. Fatima was responsible for conducting protests in North East Delhi, according to the statement in the chargesheet.

“Bharat sarkar ki chhavi ko Muslim virrodhi prastut karna hai va protest secular lage va baad mein aage ka kaam PFI, JCC va bade logon ke disha nirdashon par karne ko kaha gaya tha,” it states. We have to portray the Indian government as anti-Muslim and the protest should look secular. We were told to work on the instructions of the Popular Front of India and Jamia Coordination Committee.

Umar Khalid helped out financially and would give inflammatory speeches which would make more people join the protest, the statement claims.

The statement alleges that the less-educated residents of the area were “tricked” because Kalita and Narwal said they were scholars from Jawaharlal Nehru University and Fatima was an educated local resident. Their words had a greater impact and they could wrongly explain the Citizenship Amendment Act to the people and make them feel that the law discriminated against Muslims, the statement reads.

It adds that several leaders and lawyers such as Khalid, Chandra Shekhar Azad of the Bhim Army, Yogendra Yadav, Sitaram Yechury, Mehmood Pracha, Chaudhary Matee made inflammatory speeches.

“Jo vakeel Mehmood Pracha ne batlaya ki dharna pradarshan tumhara loktantrik adhikaar hai va baaki netaon ne CAA/NRC ko Muslim virodhi batlakar samuday mein asantosh ki bhavana bhar di,” according to the statement in the chargesheet.

Lawyer Mehmood Pracha said that protest is a democratic right and the other politicians said the Citizenship Amendment Act and planned Natonal Register of Citizenships discriminated against Muslims and had created a feeling of dissatisfaction within the community.

On February 22, protestors sat under the elevated Jafrabad metro station at night after organising a candle-light march, the statement reads. On the next day, there were inflammatory speeches against the government, the statement claims. Members of the other community came on to the road and demanded that the road be cleared.

“Ilake ke neta bhi aane lage, dono samuday ke log aamne saamne aa gaye police ne badi mushkil se jadpo ke baad bhid ko tittar bhittar kiya hum vahi baith gaye,” the statement reads. Leaders from the area started to come. Members from both communities faced each other. The police with a lot of difficulty dispersed the crowds but we continued sitting.

On February 24, the crowds swelled and people came with weapons, the statement claims. Stones were thrown at the police and some in the crowd had started firing bullets. On February 25, the protest had reached a peak and anti-government slogans continued, the statement reads. The crowds were armed with sticks, stones and weapons. The women had come with red chilli powder and the crowds wanted to go towards Maujpur. Stone pelting had begun and some had opened fire, the statement claims.

“Jo hum goli chalne valoon ke peche the hume pata tha police recording kara rahi hai apne aap ko camera se bachate hue hum bhid ko peche se uksa rahe the…” the statement reads. We were behind those firing because we knew that the police were recording and we kept instigating the crowds from behind.