If you are a Muslim in India participating in a student agitation, you can be locked up for years without being convicted. Sharjeel Imam and seven other students were arrested in 2019 under anti-terrorism laws for supposed violence in an agitation against a new citizenship law discriminating against Muslims. After almost four years of incarceration, they have been discharged at a pre-trial stage by the Delhi High Court. The judge castigated the police chargesheets saying “prosecutions cannot be launched on the basis of conjectures and surmises and chargesheets cannot be filed on the basis of probabilities.”

Since the court had not been impressed by two earlier chargesheets, the prosecution had filed a third. The Court remarked, “The investigative agency has not adduced fresh evidence; rather has sought to present the same old facts in the garb of further investigation.” It cautioned that the filing of a “slew of chargesheets must cease, else this juggernaut reflects something beyond mere prosecution and would have the effect of trampling the rights of accused persons”.

The court noted that none of the witnesses had actually seen the students break the police barricades during the agitation. No eyewitnesses saw the accused committing violence. A test identification parade of witnesses was not carried out until the third supplementary chargesheet. Two independent witnesses recorded their statements after an unexplained one-year delay. These witnesses named others who were not arrested or prosecuted “for reasons best known to the police.”

The judge declared, “It is apparent that the police has arbitrarily chosen to array some people from the crowd as accused and others from the same crowd as police witnesses. This cherry picking by police is detrimental to the precept of fairness.” On allegations of conspiracy, the court said the chargesheet “does not even contain a whisper or insinuation that the accused persons acted in tandem or that they coalesced at the spot after confabulating to do so”.

Sharjeel Imam and the other students had to rot in jail for almost four years, while the police investigation carried on at a snail’s pace. The supposed legal process itself became a punishment. Yet they were fortunate to be represented by top lawyers associated with NGOs focusing on human rights. Most others are less lucky.

It is a victory for human rights that the High Court freed Imam and his colleagues. Yet the travails of the accused for four years highlight the risks of carrying out democratic protests in India. Laws on sedition and unlawful activities are draconian and can easily be misused against non-violent protestors. If violence breaks out, non-violent protestors can be accused of complicity. Bail is not easy to get for arrests under anti-terrorism laws.