Process as punishment: on the Umar Khalid case

The Delhi High Court’s decision to deny bail, once again, to former university scholar Umar Khalid and others in the “larger conspiracy” case relating to the 2020 Delhi riots is a grim affirmation of how special security laws, combined with a deferential judiciary, can transform pre-trial detention into extended punishment. The court’s reasoning, which held that Khalid’s five-year-long custody is not in itself sufficient grounds for bail, rests on the stringent provisions of the Unlawful Activities (Prevention) Act (UAPA). Section 43D(5) of the UAPA bars bail if there are “reasonable grounds” to believe the accusations are prima facie true, a clause that judicial interpretation since the Supreme Court’s Watali (2019) judgment has hardened into a near-insurmountable barrier. By forbidding a detailed examination of evidence at the bail stage, the law effectively forces courts to accept the prosecution’s narrative. If the charge sheet alleges a conspiracy and attaches voluminous material, the accused is jailed, sometimes indefinitely. With provisions that extend the investigation period to 180 days and prohibit anticipatory bail, the UAPA creates a legal framework where the process itself becomes the penalty — as in Khalid’s case. Courts, however, possess the authority to counter such procedural constraints. Long incarceration without trial has been recognised in rulings as grounds for relief, even in serious cases.

A different Bench of the High Court, while granting bail in 2021 to three other activists in the same case, had ruled that the state, in its anxiety to suppress dissent, had “blurred the line between the constitutionally guaranteed right to protest and terrorist activity”. It astutely observed that peaceful mobilisation, however inconvenient to the government, could not be casually categorised as a “terrorist act”. The current Bench appears to have ignored this crucial distinction. In treating protest-related speech and organisational planning to blockade roads as sufficient to establish a prima facie case of terrorism, it punishes dissent, precisely where constitutional liberty should have the stronger claim. This approach echoes the dangers embedded in the Bharatiya Nyaya Sanhita’s Section 152, whose vague vocabulary invites the same broad strokes that have been weaponised under the UAPA. Incomprehensibly, the Bench even justified the trial’s slow pace, calling it “natural”. The price for Khalid is already severe, with his name fixed in the public imagination as a conspirator. When the judiciary defers to the state’s anxieties and allows the line between protest and terrorism to be erased, the distinction between accusation and guilt collapses. If prolonged delay is permitted to be a substitute for conviction, the constitutional guarantees of liberty and free expression under Articles 19 and 21 are hollowed out for all citizens.