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This is the second part of Newslaundry’s ongoing series on the case against journalist Siddique Kappan. You can read the first part here.

Kappan and three others were arrested at a toll plaza in Mathura on October 5, 2020, when he was on his way to Hathras. According to the first information report filed by the UP police on October 7, Kappan has been charged under sections 124A (sedition), 153A (promoting enmity) and 295A (deliberate and malicious acts intended to outrage religious feelings), in addition to provisions of the Unlawful Activities (Prevention) Act and the Information Technology Act.

Based on an examination of the chargesheet by defence lawyer Madhuvan Dutt Chaturvedi, Newslaundry has learnt that UP Police’s special task force has submitted WhatsApp chats with members of the organisation Popular Front of India as evidence.

Evidence or invention?

A WhatsApp message may be considered electronic evidence only if it satisfies certain conditions under section 65B of the Indian Evidence Act. Krishnesh Bapat, CCG Fellow at the Internet Freedom Foundation, said “Merely because WhatsApp messages are admissible does not mean that the court will attach a high evidentiary value to them. How reliable the court considers those messages depends on several factors, such as the context in which they were sent and the circumstances in which the police obtained them.”

Kappan’s lawyer Wills Mathews, told Newslaundry, “As a journalist, Kappan might have been in touch with people from all walks of life. Unless there is recovery of disproportionate income or any other evidence, my client cannot be prosecuted under UAPA.”

In the almost 5,000-page chargesheet against Kappan, which was submitted by the UP STF in April this year, PFI is mentioned repeatedly. The UP STF has alleged Kappan is associated with the organisation. Since 2019, PFI has been accused of instigating and masterminding violence on numerous occasions by the UP police. Last year, the UP police had recommended PFI be banned, but the centre chose to defer the ban. In UP STF’s chargesheet in Kappan’s case, an official from UP’s anti-terror squad (ATS) has said PFI is “a radical organisation that wants to establish an Islamic State in India”.

Earlier this year, in an affidavit filed in the Supreme Court in January, Kappan denied any links with PFI.

WhatsApp chats between Kappan and PFI members

Multiple WhatsApp chats, dated between August 2018 to October 2020, have been submitted as evidence by the UP STF in the chargesheet. These chats are all from Kappan’s cellphone. According to the UP STF, Kappan’s WhatsApp messages prove his alleged involvement in “inciting caste violence in Hathras” and his association with PFI. A daily diary entry by the investigating officer, dated February 4, 2021, presents a summarised version of some of these chats.

Chat with PFI member Kamal KP, dated August 17, 2020:

After an article by Kappan on the proposed ban on PFI’s political wing, the Social Democratic Party of India (SDPI), was published on the Malayalam news website Azhimukham, Kappan shared the link with PFI member Kamal KP.

The chargesheet describes Kappan’s article as “a story against the proposed ban on SDPI”. However, an English translation of the story (which is part of the chargesheet) shows that Kappan’s article includes quotes by PK Feroz of the Muslim Youth League (youth wing of the political party, the Indian Union Muslim League). Feroz is critical of SDPI and says, “The SDPI is a extremist group in the Muslim community. That is why the Muslim League has to criticise the SDPI more than it opposes the RSS.”

The article also presents a counterpoint by quoting Sathar Panthallur, state general secretary of Samastha Kerala Sunni Students’ Federation, who says, “Whether the SDPI has a role in the Bangalore conflict remains to be proved. Banning SDPI or RSS is not a solution.” (This is with reference to SDPI’s alleged involvement in a hand-chopping incident in 2010.)

Chat with Kamal KP on September 1, 2020 at 6.33 am:

This conversation includes a voice message sent by Kappan in Malayalam, which has been translated to:

“Kamal sahib, what about your plans (or projects)? You mentioned about a class...a workshop. Any decision taken about it? I am planning to go back to Delhi by 11th. Is it possible before that? Can you update. After listening this delete.”

According to the chargesheet, this voice message shows Kappan “is hinting towards a secret agenda and is therefore suggesting to delete the audio so that information isn’t leaked.”

Newslaundry contacted Kamal KP to ask him about Kappan "suggesting to delete the audio".

Kamal said, "Without listening to the alleged audio message said to have mentioned in the chargesheet, it is impossible to comment on that. Moreover, tampering of electronic devices is nothing new to investigation agencies, which has been already exposed in Bhima Koregaon case by the Arsenal Consulting, a Massachusetts-based digital forensic firm. Activist-accused Rona Wilson's laptop was hacked and 10 incriminating letters planted. Hence, it was nothing surprise about the 'alleged deletion of voice message', a fictitious story of UP STF for implicating innocents."

Links shared with Kamal KP on October 2, 2020:

The UP STF has also included chats in which Kappan shared links with the PFI member. One of these, shared on October 2, 2020, is of an interview Kappan conducted with Supreme Court lawyer Prashant Bhushan, which was published in the news website Muslim Mirror. It is not clear why this interview is part of the chargesheet.

On October 4, 2020, Kappan shared with Kamal KP the link to this story, which Kappan had filed on Communist Party of India (Marxist) leader Vijoo Krishnan visiting the Hathras gangrape victim’s family. In the chargesheet, the UP STF singles out the mentions of the CPI(M) leader and Bhim Army chief Chandra Shekhar Azad, who had also visited the victim’s family. The investigating officer has alleged Kappan was sending reports related to Dalits and Muslims to Kamal KP “as part of PFI agenda”.

It is not clear how these WhatsApp chats relate to the allegation of “incitement of violence in Hathras” against Kappan.

Chat with chairman of PFI, OMA Salam:

On August 14, 2020, Kappan sent OMA Salam the link to a story by Zee News, titled “Exclusive: Delhi riots were planned after Jamia violence; PFI provided funds, reveals RJD youth wing leader Meeran Haider”. After sending the link, Kappan sent a text message, saying, “Please urgent attention.” The UP STF has said this message is proof of Kappan’s proximity to PFI. “And since the news of PFI funding was out, he was alerting the PFI chairman about the same,” says the chargesheet.

Newslaundry had earlier reported how this “exclusive” was among a slew of stories by Zee News which were misleading, one-sided and without any substance. Most of these stories were based on inputs and selective leaks from the Delhi police special cell.

When asked about Kappan’s alleged association with PFI, the group’s general secretary Anis Ahmed said, “As this is an alleged conversation between two individuals, we can’t comment as an organisation. Inventing the PFI link is part of a political decision.”