The Supreme Court once again heard the bail petitions of Umar Khalid, Sharjeel Imam, Gulfisha Fatima, and Khalid Saifi– activists arrested under the draconian Unlawful Activities (Prevention) Act (UAPA) for their alleged role in the “larger conspiracy” behind the 2020 Delhi riots. Their lawyers, among the country’s most senior advocates, repeated what they have said for over five years: there is no evidence linking them to violence, no trial in sight, and no end to their incarceration.
“If you get bail after six or seven years, what is the point?” asked senior advocate Abhishek Manu Singhvi, representing Gulfisha Fatima. “What is happening to my client is a distortion of the criminal justice system,” he told the bench of Justices Aravind Kumar and N.V. Anjaria.
For Umar Khalid, arrested in September 2020, the prolonged detention has become emblematic of a deeper crisis in Indian democracy, where dissent is conflated with disloyalty and delay becomes punishment. Senior advocate Kapil Sibal, appearing for Khalid, noted that his client “was not even in Delhi when the riots took place.” Yet, he said, “others who were present have been granted bail. There has been no recovery of funds, weapons, or any material evidence linking him to the riots.” The Delhi Police filed 751 FIRs related to the February violence, but Khalid’s name appears in only one.
Sharjeel Imam’s counsel, Siddharth Dave, reminded the court that his client was already in custody when the violence erupted. “How can someone be accused of conspiracy when he was in jail at the time?” he asked.
Despite such arguments, bail remains elusive. “This is injustice,” Sibal remarked bitterly. “Article 21 has been violated. If you don’t want to give bail, dismiss the case. Why hold 20 or 30 hearings over years?”
The Riots and Their Aftermath
The February 2020 violence began amid protests against the Citizenship (Amendment) Act, 2019, a law critics said discriminated against Muslims. What started as peaceful sit-ins, led by women in places like Shaheen Bagh and Jafrabad, spiralled into deadly clashes in North-East Delhi,in which 53 people were dead, most of them Muslims, and hundreds displaced as homes, shops, and mosques were torched.
Few of the 751FIRs have led to convictions. The Delhi Police maintain that the violence was the result of a premeditated conspiracy by anti-CAA protesters. Yet, as the trials drag on, an unsettling pattern emerges: activists are jailed under stringent anti-terror laws, while several figures accused of making incendiary speeches remain free – some even rewarded with political office, e.g. BJP leader Kapil Mishra. Mishra denies wrongdoing and has since been elevated as a cabinet minister in the BJP-led Delhi government.
Bail as Exception, Jail as Rule
The Supreme Court has long held that “bail is the rule, jail is the exception.” But as cases like Khalid’s show, this principle seems reversed when it comes to political dissenters. His bail application has been listed and re-listed dozens of times since 2022, with multiple judges recusing themselves and hearings frequently postponed. Khalid has now spent over 1,700 days in custody, save for a 7-day interim bail to attend his sister’s wedding.
By contrast, many accused in hate speech or riot-related cases have faced neither similar scrutiny nor prolonged detention. “Lower courts fail to recognise bail rights in sensitive cases,” Singhvi observed. “The triple test of flight risk, non-cooperation, or tampering with evidence is routinely ignored when it comes to dissenters.”
The misuse of UAPA allows authorities to keep accused persons in custody almost indefinitely. Its sweeping definitions and harsh bail conditions create what rights advocates describe as “a legal blackhole.”
A Tale of Two Justices
The contrast between those punished and those spared could not be starker. While Khalid and Imam languish in Tihar Jail, several alleged instigators of communal hate speech campaign freely – some now ministers or MPs. “Protesters are punished; instigators are spared,” says Nadim Khan, General Secretary of APCR. Speaking with Radiance, Khan said, “The Delhi Police’s claim that the riots were part of a ‘regime change operation’ is absurd. It politicises the legal process and weaponises the law against dissent.”
Khan adds that the evidence, mainly WhatsApp chats and delayed witness statements, would not survive judicial scrutiny. “Labelling peaceful protesters as terrorists for seeking constitutional accountability stretches the definition of terrorism beyond recognition. It sets a dangerous precedent in a democracy.”
In conversation with Radiance, Engineer Mohammad Salim, Vice President of Jamaat-e-Islami Hind, echoes this view: “Justice delayed is justice denied – not just for the accused, but for the republic itself. Upholding the rule of law is not optional; it is the essence of our democratic spirit.”
He adds, “The right to dissent is the lifeblood of democracy. The continued detention of these young activists is a systematic attempt to silence disagreement and instil fear in civil society.”
Dr.S.Q.R. Ilyas, father of Umar Khalid, told Radiance that neither his son nor the family’s morale had weakened despite the deliberate delay in justice. Referring to the New York Times’ full-page feature on Khalid, Dr. Ilyas said, “His profile is only rising because of this illegal incarceration.” A spokesperson of the All India Muslim Personal Law Board, he dismissed the Delhi Police’s “regime change” theory as outlandish, asserting that the prosecution has failed to produce any credible evidence.
Echoes of History
A century ago, the 1919 Gazette of India remarked, with colonial irony, that “Brahmins possess judicial sense,” implying that caste and faith influenced justice even under British rule. That stereotype now seems prophetic. In today’s India, too, outcomes often hinge on identity – religion, caste, or ideology.
Minorities, dissenters, and the marginalised face prolonged incarceration, while those aligned with power escape scrutiny. “The system was designed to protect power,” says a Delhi-based legal scholar. “It still does; only the rulers have changed.”
A System in Distress
India’s criminal justice system suffers from chronic delays, uneven policing, and procedural opacity, flaws that deepen in politically sensitive cases. Trials stretch for years, judges recuse or are transferred, and evidence appears selectively.
“Delay itself has become punishment,” says Sibal. “When an accused spends five years in jail without trial, that’s not justice; that’s injustice institutionalised.”
According to the Supreme Court Observer, convictions in riot-related cases remain in single digits. Manycollapse for lack of credible evidence or because witnesses turn hostile. Yet, the same leniency is not extended to protest-related cases, eroding public faith. When courts deny bail to activists but ignore inflammatory speeches by politicians, citizens see a pattern, not coincidence.
Beyond Law: The Political Message
The use of laws like UAPA, sedition, and the NSA in protest cases sends a chilling warning: questioning the government’s actions, even peacefully, can cost years of freedom.
“The message is: dissent at your own risk,” says a human rights lawyer who has followed the case closely. “You don’t need conviction to punish someone. You just need a delay.”
For the state, delay serves as deterrence; for the accused, it becomes despair. Trials that never begin, bail hearings that never end; this is punishment without verdict.
Broader Implications
The denial of bail to anti-CAA activists is not merely about individual liberty. It is a test of the judiciary’s independence and the health of democracy itself. If courts cannot safeguard the right to dissent, the consequences are profound: citizens lose faith, institutions lose legitimacy, and democracy loses meaning.
“When justice moves slower for the poor and faster for the powerful,” one observer noted, “it stops being justice.”
Reform must begin with:
Bail jurisprudence: Bail should be denied only under the triple test – flight risk, evidence tampering, or non-cooperation.
Speedy trials: Long pre-trial detention violates Article 21’s guarantee of life and liberty; time-bound hearings are essential.
Transparency and parity: Politically connected individuals must face the same legal standards as others.
Restrict misuse of UAPA: Dissent is not terrorism; the law must be confined to genuine threats to national security.
Address social bias: Caste, class, and communal prejudice in policing and prosecution require urgent institutional reform.
The Human Cost of Delay
Behind every legal argument lies human suffering. For Umar Khalid, it means missing family milestones. For Gulfisha Fatima, years of isolation and stigma. For Sharjeel Imam, being branded a “mastermind” without trial and for Khalid Saifi its double ordeal who has a family with two kids.
Each day behind bars without conviction chips away at the constitutional ideal that all are equal before the law.
“If this case goes to trial, all of them will be acquitted,” Sibal predicted recently. Whether that holds true remains to be seen. But one fact is beyond dispute: five years of lost liberty cannot be restored by any verdict.