Sharjeel and Umar's Continued Incarceration Serves As a Political Allegory

Where State policy has made a definitive shift towards majoritarian fundamentalism, the likes of Umar won't be tolerated, for they pose the risk of instilling critical thought in the Muslim mind.

Of all our institutions which employ the virtues of bourgeois democracy to gaslight citizens, the judicial system is perhaps the most cruel. Our Supreme Court regularly exalts the values of liberty, freedom of thought, speech and conscience so as to give an impression that these privileges belong to an elevated realm of sacrosanct abstractions. Yet, on days such as today, it rules that five and a half years of incarceration pending trial is not long enough. This naturally begs the question- How Long is Too Long?; unfortunately, the Court wouldn’t answer that too.

While five of the accused in the now infamous FIR No. 59/2020 will now walk out of jail courtesy a bail order saddled with arduous conditions, Sharjeel Imam and Umar Khalid will continue to face imprisonment for, per the Supreme Court, they rank higher in the ‘hierarchy of participation’ in the alleged conspiracy. The differentiation is absurd at the very outset because even in the case set up by the prosecution, there appears to be no credible evidence, documentary or otherwise, which posits Umar and/or Sharjeel as ‘masterminds’ of anything which is constitutionally impermissible.

Roles attributed to Umar and Sharjeel

The broad accusation against Umar is of mobilising members of the Muslim community for participation in protests, awareness campaigns and chakka jam against the Citizenship Amendment Act (then, a Bill). Sharjeel too has been accused of calling for and orchestrating disruptive demonstrations and forming and running ‘communal’ WhatsApp groups of Muslim students. Per witness statements, Umar and Sharjeel coordinated protests, oversaw distribution of pamphlets and encouraged Muslims to participate in these demonstrations against the new Bill.

The prosecution could not have directly gainsaid the protected right to organise protests, including a chakka jam, against a legislation. It, therefore, cleverly tries to imbue these accusations with a presupposition that because the audience for the aforesaid calls for protests was primarily Muslim, these calls are communal and illegal. The Supreme Court has not only bought but also solidified this presupposition.

The consistent extrapolation of protests with violence is another leap of faith the prosecution has failed to explain. This, however, has not deterred the courts from presuming this hitherto unknown link between the demonstrations organised by these student activists and the violence unleashed in the Delhi riots.

It may then be that the legal system, through the present case, is trying to tell us that members of the Muslim community organising and participating in protests would always be burdened with an extra responsibility of ensuring that their cause is not haunted by the spectre of any criminal activity, even if such crime is not committed at the behest of the community. Should Muslims take some extra-constitutional precautions before organising protests? This question should now be put directly to the Court. We’d perhaps get another paean on the exalted value of the right to peaceful protests.

What also seems bizarre is that the nature of allegations levelled against the other accused in the FIR granted bail earlier today is quite similar to the accusations made against Umar and Sharjeel. All of these people, per submissions made by the State, have made speeches, distributed pamphlets, run WhatsApp groups and mobilised Muslim crowds at some point in the winter of 2019-20. Why would Sharjeel and Umar be then kept on a ‘qualitatively different footing’?

The answer to this exceptional treatment, I am afraid, travels beyond the limits set by the law.

Image courtesy: free.umarkhalid

Umar, Sharjeel and Legal Exceptionalism

Umar and Sharjeel are industrious scholars. They did not confine themselves to knowledge production but used their training to point out prejudices implicit in State policy. Most importantly, and to the detriment of the present dispensation, they spoke directly to their community.

They were received well; their voices resonated with those who live and struggle at the margins. They are leaders of the Muslim community who are looked up to, admired and emulated. The terror they’ve been accused of creating is not on the streets, but in the heart of a majoritarian dispensation scared of an assertive minority population.

The rationale employed in the judgment may phrase it differently but it is this industriousness which places Umar and Sharjeel on a ‘qualitatively different footing’, which makes them an exception. They also serve as examples, their incarceration holding an allegorical significance in a country now increasingly at ease with its majoritarian character.

In tune with this prevailing political climate, our courts will obfuscate facts and the law to keep the likes of Umar and Sharjeel incarcerated. The justification for their incarceration, however, would never flow from the law.