A prolonged incarceration, a global rebuke, and the unsettling question:is the process itself the punishment?
Time, in a court of law, is meant to serve justice. It allows evidence to be examined, arguments to be heard, and truth to emerge. But when time stretches endlessly – unaccounted, unexamined – it ceases to be neutral. It begins to punish.
In September 2020, Umar Khalid, a former scholar and public intellectual, was arrested in connection with the Delhi riots “larger conspiracy” case under the Unlawful Activities (Prevention) Act (UAPA). As of March 2026, he has spent over 2,000 days in prison – more than five years and a half – without the trial even commencing.
Repeated bail applications have failed. On 5 January 2026, the Supreme Court denied him bail, even as it granted relief to five co-accused in the same case. The legal process has moved, but not forward. It has circled, delayed, deferred.What remains is not simply detention, but duration without determination.
This is no longer just a case. It is a condition – a state in which time itself has turned punitive.
A Case That Became a Symbol
Umar Khalid emerged as a prominent voice during the protests against the Citizenship Amendment Act (CAA). His speeches – critical, constitutional, and political – were part of a broader democratic churn. It is these speeches, along with alleged digital communications, that now form the backbone of the prosecution’s case. The state alleges conspiracy, a standard case of criminalisation of dissent.
Over the years, several co-accused have been granted bailon grounds of health, limited roles, or humanitarian considerations. The contrast has sharpened scrutiny: why does liberty reach some, but not others, within the same factual matrix? The answer lies partly in the architecture of the law itself.
Under the UAPA, bail is governed by a stringent threshold: if the accusation appears prima facie true, courts must deny bail. This effectively shifts the balance from liberty to incarceration at the very outset, transforming pre-trial detention into a near certainty rather than an exception.
The consequences are by now difficult to ignore: trials remain in abeyance, evidence continues to be contested, yet incarceration persists with a troubling inevitability, suggesting that, in effect, the deprivation of liberty has ceased to await adjudication and has instead become its substitute.
On 19 March 2026, a special court acquitted two individuals, Jamshed Zahoor Paul and Parvaiz Rashid, prosecuted under the same law after years in custody, noting that suspicion, however strong, cannot replace proof. The judgment quietly reaffirmed a foundational principle of criminal law. Yet, it also exposed a harsher truth: that years of freedom had already been irretrievably lost. The system may eventually correct itself, but only after an irreversible loss that no verdict can repair.
When the Constitution Meets the Reality of Procedure
At a deeper level, the case compels a return to first principles. Article 21 of the Constitution guarantees that no person shall be deprived of life or personal liberty except through a procedure that is just, fair, and reasonable – a guarantee that the Supreme Court has expansively interpreted to include the right to a speedy trial. It has repeatedly affirmed a foundational norm of criminal jurisprudence: bail is the rule, jail the exception. Yet, in the operation of stringent statutes such as the UAPA, this principle appears increasingly inverted.
The architecture of the law – particularly as it has evolved in recent years, requiring courts to deny bail where accusations appear prima facie true – has, in practice, shifted the balance decisively away from liberty at the pre-trial stage. What was once a system anchored in judicial discretion and the presumption of innocence has gradually given way to a framework where prosecution claims carry determinative weight at the threshold. The presumption of innocence, though formally intact, risks receding into abstraction, while incarceration becomes the lived and immediate reality.
This inversion gives rise to a more troubling jurisprudential concern: whether the process itself has begun to assume the character of punishment. Years spent in custody without adjudication entail not only the deprivation of liberty, but also the erosion of livelihood, reputation, and irreplaceable time. Families absorb the economic and emotional shock; social stigma precedes any determination of guilt. Even eventual acquittal, as recent cases have shown, cannot restore what prolonged incarceration has already taken away.
These concerns are further sharpened by the increasing reliance on digital evidence – messages, documents, and electronic trails – whose authenticity and interpretation have, in certain cases, been contested. Where liberty hinges on such material, the obligation upon courts to exercise heightened scrutiny becomes all the more critical.
To be sure, delay is not unique to any single category of cases; it is a structural feature of India’s criminal justice system. Yet, the persistence of prolonged pre-trial detention in cases involving serious charges, without a corresponding urgency in the commencement or completion of trial, raises difficult questions. Is delay merely systemic, or does it fall unevenly upon particular classes of accused, especially those linked to dissent or politically sensitive contexts?
Seen in this light, the issue transcends any individual prosecution. It speaks to the very health of the rule of law. For when liberty is curtailed for years without trial, the constitutional promise begins to yield to a harsher reality, one in which accusation alone is sufficient to justify prolonged incarceration.
A Global Intervention: The UN Speaks
In February 2026, the case crossed from domestic debate into international scrutiny.The United Nations Working Group on Arbitrary Detention (UNWGAD), in its Opinion No. 66/2025, declared Umar Khalid’s detention to be arbitrary under international law.
Its findings were unambiguous. The detention, it held, lacked legal justification, stemmed from the exercise of fundamental freedoms, violated fair trial guarantees, and bore elements of discrimination. It further noted the prolonged absence of trial proceedings and procedural irregularities.
The Working Group called for:
- Immediate release;
- Compensation and reparations; and
- An independent investigation into violations.
Significantly, the Government of India did not respond to the UN’s communication – a silence that, in such proceedings, carries its own weight.
The opinion is not legally binding. But its moral force is difficult to dismiss. It represents an external mirror held up to a domestic process.
The Expanding Circle of Concern
The UN’s intervention did not emerge in isolation. It amplified a growing chorus.International human rights organisations, diaspora groups, and advocacy networks have increasingly framed the case as emblematic of broader concerns about civil liberties in India. Earlier, lawmakers abroad had raised due process questions. UN Special Rapporteurs had cautioned against the misuse of counter-terror laws.
At stake is not merely one individual’s liberty, but the credibility of a democratic framework that prides itself on constitutionalism.
India has consistently maintained that such matters fall within its sovereign jurisdiction. That position is neither new nor unique. But sovereignty, in a constitutional democracy, is not insulated from scrutiny; it is enriched by accountability.The tension between internal processes and external critique is real. But it is within this tension that democracies define their strength.
Justice Deferred, Justice Distorted
The implications of prolonged pre-trial detention extend far beyond a single case. They challenge the meaning of justice itself, forcing us to ask whether liberty can be meaningfully restored after years of wrongful deprivation – or whether delay transforms justice into something irretrievably diminished.
When individuals spend years in prison without trial, the distinction between accusation and guilt begins to blur – not legally, but socially and experientially. The system may eventually correct itself, but the correction comes after irreversible loss.This is more than a procedural lapse; it is a moral question.
What is justice worth if it arrives too late to restore what was taken? What does liberty mean if it can be withheld for years without adjudication? And what remains of due process when the process quietly assumes the function of punishment.?
There is an old moral principle: that no burden should be placed upon a person without clear proof, and no soul should be deprived beyond what is justly established. It is a principle that resonates across legal systems, faith traditions, and ethical philosophies alike.Yet, in practice, that principle often yields to expediency.
A Final Reflection: The Weight of an Unanswered Question
After the Supreme Court’s decision in January 2026, Umar Khalid is reported to have said: “Jail is my life now; happy for others who got bail.”
There is dignity in that statement – but also a quiet indictment. For a system that promises justice, such resignation should not be normal.
The question, ultimately, is not about one man. It is about the meaning of justice in a constitutional democracy.
Is justice merely the eventual outcome of a legal process? Or is it also the manner, the time, and the fairness with which that process unfolds?
A society that values liberty must confront an uncomfortable truth: justice is not only denied when it is wrong; it is denied when it is delayed beyond recognition.
And if justice is measured not only by verdicts delivered, but by the dignity preserved along the way, then the question that remains is both simple and unsettling: how long can freedom wait before it ceases to be justice at all?
BOX:
UAPA, Undertrials, and the Long Wait for Justice
- 10,440 arrests under UAPA (2019–2023); only 335 convictions → Conviction rate ~3%
- 2,914 arrests in 2023 alone, with highest concentration in J&K and UP
- Conviction rates remain between 2–4% across recent years
- 74% of India’s prison population are undertrials (≈3.9 lakh people)
Detention Patterns
- Pre-trial detention in UAPA cases often lasts 3–6+ years
- Trials frequently do not begin for years after arrest
- Bail is restricted by Section 43D(5), requiring courts to accept prosecution claims at a preliminary stage
Nature of Cases
- Terror-linked allegations (insurgency, militancy)
- “Larger conspiracy” cases (e.g., protests, riots)
- Activism and student movements
- Journalism and rights work
- Digital evidence-based prosecutions
Outcome Reality
- Between 2014–2020: 10,552 arrests, only 253 convictions
- Majority of completed cases end in acquittal or discharge
The gap between arrest and conviction reveals a structural paradox: incarceration is swift, but justice is slow.