Hierarchy of roles: On no bail for Umar Khalid

Using the terms of the Unlawful Activities (Prevention) Act (UAPA), the Supreme Court of India has grouped the accused in the Delhi riots case of 2020 based on their ‘hierarchy of participation’, denying bail for Umar Khalid and Sharjeel Imam while granting it under strict conditions to the other five appellants, Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan, and Shadab Ahmed. The Court emphasised Section 43D(5) of the Act, which only requires courts to assess whether the accusations are prima facie true, and thus rejected the defence of prolonged incarceration and narrowed Khalid’s and Imam’s options. The prosecution has always alleged that the riots were the result of a plan allegedly coordinated in protest networks and WhatsApp groups. People routinely plan protests on messaging apps and that is not inherently suspicious. But the state has persuaded the Court that the articles of organisation are evidence of a terroristic design. However, the Court has treated “terrorist acts” under Section 15 as being able to cover more than overt violence, including threatening to disrupt services, an interpretation that could have a chilling effect by emboldening governments to use stringent preventive detention under UAPA and, in political cases, to normalise the pursuit of prolonged incarceration without trial.

The Court using its ‘hierarchy of participation’ as the basis to relieve all but two people is unfair when the evidence to establish it has yet to be tested in court. Khalid and Imam were arrested as young men and have now spent five years in custody. The passage of time weighs more heavily on youth; if the courts find no case later, the damage done by prolonged incarceration cannot be undone. The UAPA’s provisions vest the state with an unrelieved power to snare those charged under the Act and prevent easy exits. But the existence of such power should also be weighed against the charges. There is a difference between, say, the perpetrators of the 26/11 Mumbai attacks, which informed parts of the UAPA, and Khalid’s and Imam’s alleged roles in the Delhi riots. The state has often invoked the Act to crush any opposition to its decisions even without an act of terrorism on the ground, revealing its overarching anxiety to quell dissent over entertaining the constitutional right to protest. The trial against Khalid and the others has not begun because, among other reasons, the sessions court has yet to frame charges and there are reportedly around 700 witnesses. That the Court granted bail to the five should be a sign for trial courts to rationalise witness lists and ensure that trials, including that of the Delhi riots, begin without undue delay.