After the Delhi police claimed four years ago that student activist Umar Khalid was a major organiser of the riots in northeast Delhi in February 2020, Khalid is being held without charge or trial in Tihar Jail’s maximum security prison.
On September 14, 2020, Delhi Police’s special cell detained the former Jawaharlal Nehru University (JNU) student for his ‘claimed involvement’ in the rioting that resulted in the deaths of 53 persons, the majority of whom were Muslims, in accordance with the strict Unlawful Activities (Prevention) Act (UAPA).
Mr. Khalid has petitioned different courts over the course of the last four years for bail, which the Supreme Court has repeatedly said is a “rule” that even applies to offences covered by special statutes like the UAPA.
The 36-year-old claims he just participated in a nonviolent demonstration and entered a not guilty plea for the felony he was charged with.
Larger conspiracy case
In the months that followed the riots, Delhi Police made over 2,500 arrests in various crimes. Over 2,000 persons have received bail from lower courts during the course of four years of hearings and trials, and most of the time, the judges have reprimanded the police for their “shoddy” investigation.
One of the more significant conspiracy cases pertaining to the 2020 riots is the one in which Mr. Khalid and 17 other people—many of whom are free on bail—were charged by the police.
Almost a year and a half after his arrest, in March 2022, a Karkardooma judge denied him bail for the first time.
In October 2022, he again went to the Delhi High Court, which again refused to provide him any relief. Mr. Khalid then petitioned the Supreme Court for bail.
His plea before the Supreme Court has been adjourned fourteen times in eleven months as of February 2024.
Adjournments infrequently happened at the request of the prosecution or because lawyers from both sides chose to remain absent. Judges A.S. Bopanna and P.K. Mishra’s bench postponed Mr. Khalid’s bail hearing in August 2023 because they felt that the matter “couldn’t be taken up in this combination [of judges]”.
After then the matter was assigned to a bench presided over by Justice Bela M. Trivedi, who, at the request of Mr. Khalid’s lawyer, delayed the hearing on September 5, 2023. When the matter was scheduled for hearing on October 12, the Bench again postponed it due to “paucity of time.” The bail request was postponed twice in January 2024 for various reasons, and once more in November due to “non-availability of the senior lawyers concerned.”
Citing “changed circumstances,” Mr. Khalid withdrew his bail application from the Supreme Court on February 14.
On the grounds of delay and equity with other accused in the broader conspiracy case, he then went back to the trial court to request release. But on May 28, the bail plea was refused.
A High Court bench made up of Justices Suresh Kumar Kait and Girish Kathpalia is currently considering the case; in July, the bench requested the police’s opinion on the matter.
Mr. Khalid’s partner and a researcher in Delhi, Banojyotsna Lahiri, describes him as “someone who used to urge people to respond to hate through love”. Anguish over the fact that he has been imprisoned for years without being given a chance to defend himself, Ms. Lahiri says her only wish is that he will at least get a hearing soon.
‘Bail is a rule’
The Supreme Court’s Bench of Justices Abhay S. Oka and Augustine George Masih recently said on August 13 that crimes covered by specific statutes like the UAPA are subject to the legal maxim “bail is rule, jail is an exception.” A man accused under the anti-terror statute was granted bail by the Bench, which also said that it would be a breach of fundamental rights if courts were to deny release in worthy instances.
Regardless of the nature of the offence, a bench of Justices J.B. Pardiwala and Ujjal Bhuyan noted in July that an accused person’s right to bail cannot be denied as a form of punishment.
The Supreme Court, according to Senior Advocate Sanjay Hegde, is a “polyvocal court” since it communicates through several Benches, which occasionally take distinct stances on the same matter. He claims that “Umar Khalid’s bail may not have come before a Bench which has given the recent pro-liberty judgements” and that persons cannot be imprisoned indefinitely for making statements that different people may interpret differently.
‘Travesty of justice’
“Everyone can see that bail is granted to those charged with serious crimes like murder and rape far sooner than Mr. Khalid’s plea would be taken into account. It is an travesty of Justice.” Senior Advocate Sanjoy Ghose claims that it is not Umar but rather our legal system that is under trial.
Soutik Banerjee, an advocate, says that Mr. Khalid is a test case for constitutional courts to uphold the primacy of fundamental rights over legislative restraints imposed on bail under the Unlawful Activities Prevention Act. He continues, “Four years of pre-trial incarceration amounts to a severe curtailment of Umar’s rights under Article 21 in his case, where the trial is not likely to be finished anytime soon.”
