It shocks our conscience: Young lawyers on the Jamia hearings in the Delhi HC and Supreme Court

On 19 December, the Delhi High Court heard six petitions demanding a probe into the Delhi Police’s violent response to the protests by the student community of Jamia Millia Islamia against the Citizenship Amendment Act, 2019. According to numerous accounts, on 15 December, the police forcibly entered the university campus and teargassed its library and brutally beat students. That night, the police attack left at least two dozen students injured. The police detained fifty students as well, according to one of the petitions in the Delhi High Court. Around the same time, the Aligarh Muslim University in Uttar Pradesh was also witnessing a similar police crackdown.

The petitioners, who included students of Jamia, sought interim reliefs—asking the court for granting reliefs urgently, without deciding the case in totality—from the Delhi High Court. A couple of these reliefs were a judicial probe into the matter and protection for the students from arrest and other coercive action. But the court did not seem to view the petitions as urgent—it adjourned the hearing till 4 February 2020.

Post the adjournment, we visited the office of the Human Rights Law Network, a non-profit which is providing legal aid to several detainees from Jamia. There, we met three advocates with the HRLN—Choudhary Ali Zia Kabir, Gunjan Singh and Fidel Sebastian—who had attended the high court hearing. The advocates commented on what had happened in the court. Singh said, “A matter of such an importance, such an urgency—when there is violence, when there is police atrocity, when there are media reports of students coming under attack—has been treated like a civil dispute.”

Two days earlier, the Supreme Court had heard the matter pertaining to Jamia and AMU. The petitioners submitted multiple medico-legal certificates and photographs featuring injuries of students to the court. But during the hearing, Tushar Mehta, the solicitor general, said that only three students have been injured. According to Kabir, this was “not a mistake of facts.” He added, “This is not a legal argument. This is just a plain lie. As young lawyers, it shocks our conscience.”

The Supreme Court directed the petitioners to approach the concerned high courts having considered the “nature of the matter; the nature of the disputes and the vast areas over which these incidents are said to have occurred.” Singh disagreed with the Supreme Court’s refusal to hear the case on the grounds that the incidents are spread over vast areas. “There is commonality in the action—the students protesting and the police attacking,” he told us. “That was totally passing the buck,” he added.

In its order, the Supreme Court also affirmed its confidence in the chief justices of the respective high courts: “if found appropriate” they will “consider” appointing committees to examine the matter, it said. The order also said that the high courts “would be at liberty” to pass appropriate orders related to the “arrests and medical treatment if brought to their notices and after proper verification.”

According to the three advocates, during the 19 December hearing, the petitioners sought the registration of a first-information report against police personnel involved in the violence in Jamia and submission of all evidence in the case to a “trusted source” appointed by the court. Sebastian said that the evidence includes CCTV footage, “which is critical.” According to him, the lawyers feared the possibility of the CCTV footage being tampered.

Singh said that during the hearing the Delhi High Court did not pass any orders according to the prayers of the petitioners. The division bench of the chief justice of Delhi High Court DN Patel and the judge Hari Shankar, simply issued notice to the respondents—Central Government, Delhi Government and Delhi Police—to file their replies to the pleas and adjourned the matter till 4 February.

The senior advocates, who were representing the petitioners, requested the court that that if it did not wish to pass any order, it should dismiss the interim prayers. After the dismissal, the petitioners could appeal to the Supreme Court. “Now, this was also refused by the honourable court,” Kabir said. This disarmed the petitioners, according to Singh. “If we have no order that we are aggrieved with, how do we challenge it and how do we approach the Supreme Court?” he said.

The lawyers present in the courtroom, too, were appalled by the high court bench’s refusal to pass orders. They chanted “Shame! Shame!” towards the end of the hearing. The next day, Patel reportedly agreed to form a committee to look into the heckling.

There seemed to be a deliberate denial of legal recourse for the students. On 2 November, clashes ensued between police and lawyers over a parking space in Delhi’s Tis Hazari Court complex. The next day, the division bench of Patel and Shankar took suo motu cognisance of the case. The bench later provided interim protection from coercive action to two police personnel involved in the case. But on 16 December, when a petitioner approached the Delhi High Court for an urgent hearing pertaining to the police’s actions on Jamia campus the previous night, the court refused to hear the matter.

In contrast to the Delhi High Court’s response to the Jamia matter, the Allahabad High Court described the situation at AMU as “war-like.” On 19 December, it directed the Aligarh district magistrate to provide medical assistance to the injured.

Kabir, Sebastian and Singh were appalled by the Delhi High Court delaying the court proceedings. Meanwhile, there was a more widespread police crackdown on anti-CAA protesters across India. The three advocates had personally witnessed the aftermath of the police brutality in anti-CAA protests in the capital.

Kabir was present at the Kalkaji Police Station on the night of 15 December, where some of the Jamia students had been detained. Based on his conversations with the detainees, Kabir said that if the students saw anyone recording on video that the police was picking them up, they tried to come in front of the camera. “Their only purpose is to show that ‘I was alive while I was taken up in the police custody,’ because they are not sure whether they might be killed,” Kabir said.

He told us that the Kalkaji police did not properly cooperate with the lawyers. For hours, the station house officer refused repeated requests by lawyers to speak to the students. “It is the constitutional right of an arrested person to have legal aid,” Kabir said. “They are not letting lawyers meet. They are not informing the families. They are not releasing the list of who is detained and who is not,” he added.

The students who spoke to Kabir said that they witnessed policemen misbehaving with the women students who were confined to the university’s library. While no woman has come forward with a first-hand account of sexual harassment till now, students told us that they had heard about such misconduct by the police personnel as well. Moreover, Sebastian said, “To our knowledge, no women constables were [deployed] inside Jamia.”

According to Kabir, most of the students requested the lawyers to not inform their families of the detention so as to not cause them stress. “Many of them were not disclosing their names even to us. Or numbers,” he said. The students told the lawyers present there, “Look, we don’t want to file any case et cetra.” They feared worse treatment at the hands of the police.

Describing the nature of injuries of one of the detained students, Kabir recalled that when he affectively touched a student’s head while comforting him, his hand became bloodstained. “Now, that injury must have taken place at 7 pm. I am interacting with them at 10 pm,” he said. “If he is bleeding continuously at 10 o’clock, then what medical attention have you provided?” Kabir said that there was a heart patient among the detained students. The student said to the police, “Look I am a heart patient. I don’t have my medicine with me. I am not feeling well.” But the police did not pay heed to his condition, Kabir said.

Due to these lapses, the advocates had expected the Delhi High Court to take strong action in the case. “It is not only one incident that happened on 15 December. While this matter was being heard, thousands of people across the country were detained and arrested,” Singh said. “This is not a civil dispute which can wait. There are serious injuries and life is at stake.”