A perverse combination of statutory restrictions and judicial deference has kept former university scholar Umar Khalid in prison for over three years. In yet another order denying him bail, a Sessions Court in Delhi declined to change its mind on earlier findings that the charge that he was part of a “larger conspiracy” behind the north-east Delhi riots of 2020 was prima facie true. It declined to countenance the argument that the trial proceedings were being delayed far too long and that a July 2023 judgment on grant of bail in cases under the Unlawful Activities (Prevention) Act (UAPA) could support his petition for bail. The court, instead, banked on earlier orders denying him bail, especially the Delhi High Court’s 2022 verdict that agreed with the Delhi Police claim that the riots were “orchestrated at conspiratorial meetings”, even though there is nothing more than WhatsApp chats on organising road blockades to substantiate it. Bail hearings have been interminably long in Mr. Khalid’s case, and inevitably end in rejections. In fact, before the Supreme Court, his bail application was listed over a dozen times, and repeatedly adjourned. He chose to withdraw the application in February 2024 and try his luck before the lower courts again. However, the Sessions Court did not see any reason to change its view.
The outcome is quite unfortunate, as while granting bail in 2021 to three other activists implicated in the Delhi riots case, the Delhi High Court had looked at the available evidence and ruled that none of them had been specifically accused of any ‘terrorist’ act or plot or act preparatory to it. It had remarked that the state, in its anxiety to suppress dissent, had blurred the line between the constitutionally guaranteed right to protest and terrorist activity. The attempt to conflate the organisation of the protests against the amendment to the citizenship law with the riots resulted in the police invoking UAPA without justification. The UAPA bars the grant of bail if the court is of the view that the allegations against a suspect are prima facie true. To compound the difficulty, judicial decisions prohibit any detailed scrutiny of the evidence at the bail stage, and mandate accepting the prosecution case based on its “broad probabilities”. This low standard enables the police to repeatedly achieve success in opposing bail to dissenters and the disfavoured. Umar Khalid’s continued and unjust incarceration represents a trend as well as an aberration in the criminal justice system. A system that sometimes bats for personal liberty also demonises protesters, allows unwanted arrests and routinely denies bail or indefinitely postpones bail hearings.
