This article is written by – Abhishree Paradkar, Symbiosis Law School
A Delhi court recently granted the bail application of Ashwini Upadhyay, a former BJP spokesperson and Supreme Court lawyer who was detained and confined for two days in judicial prison for chanting anti-Muslim slogans during an event held at Jantar Mantar. He has been asked to provide a surety bond of Rupees 50,000.
Several videos had emerged on Sunday showing the mob that had gathered at Jantar Mantar shouting slogans that openly called for killing Muslims. The applicant claimed that these slogans had been raised after the meeting that he had organized was over. He stated that he had organized a meeting to call for the repeal of the “colonial-era laws”.
Duty Magistrate Tanvi Khurana had remanded the applicant to judicial custody for two days, a day before this present hearing. The additional public prosecutor, Mr. Shrivastava, had argued that the applicant held the gathering despite the permission for the same being denied by the police of Delhi. He also added that the applicant who himself is a Supreme Court lawyer and has filed several petitions is aware of the said law and knowingly violated the law.
Observations by the Court
The said order has been passed by Magistrate Udbhav Kumar Jain of the Court of Metropolitan Magistrate.
Furthermore, the court observed that as far as the offense under Section 153A of IPC is concerned there is simply a mere assertion and there is nothing on record that shows that the accused has used hate speech to promote any sort of anonymity between the different groups. Even after making inquiries from the Ld. APP, there is no concrete evidence against the accused in the said videos.
The court also added that in this case there is barely any chance for the applicant to abscond. The court also observed that there was some conspiracy that had taken place behind closed doors. However, the investigation in the present matter is at its very initial stage, and therefore, that cannot curtail the liberty of a citizen merely on assertions.
Contentions Raised by the Public Prosecutor
The public prosecutor argued on the same, stating that there was prima facie involvement of Upadhyay in this alleged incident. He also urged the court to focus on the sensitivity of the matter as well as the alleged unlawful assembly that took place near the parliament during the times of the COVID-19 pandemic. He also noted that the accused did not have the permission of the police to assemble at the gathering and he also paid no attention to the warnings that were provided to him by the police officer present at the site.
The public prosecutor further added that the applicant himself had admitted that hate speeches had been made and that he was present at Jantar Mantar.
After the court asked the prosecution whether the applicant was present in the spot where the hate speeches were being made, the public prosecutor responded saying that the applicant’s prima facie involvement is visible; however, his specific involvement is yet to be investigated.
He added that the applicant’s involvement is a matter of investigation. At Jantar Mantar, he was one of the main speakers, and therefore, Section 149 was invoked. He was part of an unlawful assembly. It had to be highlighted that despite their permission being rejected they did not vacate or listen to the police. Even after hate speech was made, they did not report the same to the police.
Contentions of the Defense
Senior Advocates Vikas Singh, Siddharth Luthra, Pradeep Rai, and Gopal Sankararanayanan who appeared on behalf of the applicant argued that the applicant had visited Jantar Mantar sometime in the morning. As per the video the incident occurred at 5:00 PM. He added that police cannot indiscriminately arrest anyone especially when no plausible suspicion or evidence exists. Furthermore, the prosecution itself admitted that they have yet to analyze the videos. Replying to the prosecution’s contention that the applicant did not report the incident of hate speech, the police agreed with the fact that how can a person report a crime when he was not present at the place or time.
He then questioned the correctness behind keeping a person in police custody when the videos that determined his involvement were yet to be examined. He stated that the prosecution must show their participation.
Live Law News Network. (2021, August 11). Delhi Court Grants Bail To Lawyer Ashwini Upadhyay In Jantar Mantar Anti-Muslim Sloganeering Case.