Narsinghanand vs Umar Khalid: Two Bail Sagas Expose India's 'Rule of Law' Crisis

Umar Khalid, despite never inciting violence, remains in jail, while Yati Narsinghanand violates bail conditions.

It lasted for eight months.

The charge sheet was dissected. Witness statements revealing shocking conspiracies were brought forward. Several glaring flaws and inconsistencies were pointed out in these same witness statements.

A speech which encouraged communal harmony was portrayed as inciting communal violence, because video editing software is too easily accessible, and a political party's IT Cell workers have too much time on their hands.

Tensions were high. National security was invoked. He-Who-Must-Not-Be-Named was invoked – no, not that one, the original one, Voldemort himself.

After eight months of hearings, the decision was reserved. It was scheduled to be announced. Then it was deferred. Then it was deferred again. Then it was deferred again.

And when it was finally announced on 24 March, we learned that Umar Khalid was being denied bail and would continue to remain in jail despite not being convicted of a crime. Something we knew would happen the day he was arrested, 18 months ago.

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If Khalid's continued incarceration is no real surprise, neither is the fact that Hindutva fanatic Yati Narsinghanand would get up on a stage in the national capital and spew anti-Muslim hatred just weeks after having got bail in a case against him for, you guessed it, hate speech.

After all, Narsinghanand had been allowed to make his incendiary speeches against Muslims for years, even openly calling for violence against them in the build up to the Delhi Riots in February 2020, and never faced any action whatsoever.

When he was finally arrested in January this year, it was primarily in connection with a speech where he made derogatory remarks against women, though custody was also requested in the case involving his hate speech at a 'dharam sansad' in Haridwar in December 2021.

He was able to obtain bail from the sessions court in both cases, with conditions laid down that he would not repeat the same offence he'd been arrested for.

Interestingly, the magistrate who first heard his bail plea had rejected it, noting that even after he'd been sent Section 41A notices to answer the police's questions, he'd continued to post inflammatory speeches on social media.

And so it really shouldn't have been difficult to foresee that he would violate his bail conditions at a 'Hindu Mahapanchayat' in Delhi on 3 April, saying Hindus would be forced to convert and would be killed if a Muslim ever became Prime Minister of India.

An All-Too-Clear Pattern

The point here is not necessarily that Yati Narsinghanand should be in jail and shouldn't have got bail.

Bail is supposed to be the rule and jail is supposed to be the exception, unless there are specific risks to the person being released: that they might repeat the same offence, threaten witnesses, tamper with evidence, or abscond.

The problem is not even that Khalid has not been able to get bail, despite having never made any public calls for violence – that was inevitable, given the invocation of the Unlawful Activities (Prevention) Act, the dreaded UAPA, in the case against him.

But that is where we see the problem taking shape. When it comes to someone like Khalid – a dissenter and critic of the government – the case will inevitably include a serious law like the UAPA, which will make getting bail nearly impossible for them.

While someone like Narsinghanand, whose ideology is of a majoritarian nature, will – despite his hate speeches being publicly available – never be charged with the kind of offences which would make it similarly difficult for him to get bail, or reflect the seriousness of his transgressions.

This pattern has been repeated over and over and over again in the past few years to the point where we can all see it, and yet it is not going to change.

This points to a serious crisis for the rule of law in India, which, if unaddressed, will lead to an erosion of fundamental rights for everyone – even those who currently celebrate it.

The Importance of the Rule of Law

The rule of law is one of those things that we often take for granted as a universally accepted principle that makes people's lives better.

The basic concept is simple: laws are to be made public and clear; nobody is above the law, even the government and people with the greatest privilege; everyone is to be treated equally in the eyes of the law; and there should be an independent judiciary which adjudicates fairly.

This principle forms the bedrock of modern legal and constitutional systems the world over, including India, where Article 14 guarantees equal treatment before the law, Article 21 guarantees that the right to life and personal liberty can only be taken away by a procedure established by law, and the courts have the power of judicial review over executive and legislative action.

The rule of law has even been acknowledged to be part of the basic structure of the Constitution by the Supreme Court of India, including in the landmark Kesavananda Bharati case back in 1973.

Without the rule of law, there can be no real freedom or fundamental rights or civil liberties, and while these concepts may at times feel devalued in this day and age, they are not only integral parts of our Constitution, but also ideals to strive for.

Not Isolated Incidents

So why does the Umar Khalid vs Narsinghanand situation demonstrate a threat to the rule of law?

First off, it is crucial to note that these are not isolated incidents. When it comes to those accused of crimes who have a majoritarian sentiment, or express support for government policy, there is a clear pattern of not invoking the most serious charges against them.

Take the murder of Gauri Lankesh. The Karnataka police argued that the murder was pre-planned, part of an organised conspiracy that had also been responsible for the deaths of rationalists Narendra Dabholkar, MM Kalburgi and Govind Pansare.

However, the charge sheet against the accused does not include any offences under the UAPA, although there are charges under the KCOCA.

On paper, these attacks by an 'organised crime syndicate' on these reputed rationalists (who the accused considered threats to their religious ideology) could have fit within the definition of a 'terrorist act' in Section 15 of the UAPA, as acts "with intent to strike terror or likely to strike terror in the people or any section of the people in India".

Yet, this is not what the police decided to invoke in the case.

On the other hand, the Karnataka police (and subsequently the National Investigation Agency) did not hesitate to invoke the UAPA in the Harsha murder case, where an RSS activist in Shivamogga was found murdered by Muslim accused, terming it a conspiracy to incite communal violence.

No UAPA charges were invoked in any of the multiple cases of lynching of Muslims across the country over the last few years – nor were any other laws like the National Security Act, which were instead used in some cases to target the victims.

The shooters at Jamia Millia Islamia university and Shaheen Bagh during the anti-CAA protests, despite going with clear motives to threaten the Muslim community, have also not been hit with charges under the UAPA or any other special laws, allowing them to get bail easily.

On the other hand, sedition charges (which also make bail difficult as they are punishable with life imprisonment) have been slapped on young activists like Amulya Leona or Disha Ravi in the most ridiculous cases.

While Ravi was able to get bail on her second attempt in a relatively short period of time because her case was heard by a sessions judge who understood the law, 19-year-old Leona – whose shouting of a Pakistan Zindabad slogan clearly wasn't sedition under the Balwant Singh judgment of the Supreme Court – spent 110 days in jail.

Coming back to Narsinghanand and his friends from these dharam sansads – their speeches, which clearly incite violence against a particular community, also fit the bill when it comes to incitement of terrorism or conspiracy for terrorism, but the belated FIRs against them don't include UAPA or sedition or NSA or any other such provisions.

Indeed, even though his speech at the Hindu Mahapanchayat on Sunday violated his bail conditions, Narsinghanand has not been arrested again, nor has any move been made yet to cancel his bail.

It cannot also be said that no serious provisions can be used in the case against them since no actual violence has been committed in the furtherance of their statements.

Most of the accused in the Bhima Koregaon case are accused of Maoist plots and conspiracies which never came to fruition, and yet they remain behind bars for nearly four years now, thanks to the UAPA's virtual bail embargo.

'For my Friends, Everything. For my Enemies, the Law'

An abandonment of the rule of law doesn't require complete lawlessness, or open attacks on dissenters and minorities.

It can also involve strict application of laws against certain people, and a more laissez faire attitude to people accused of a crime who are closely aligned to the ruling dispensation, as reflected in former Peruvian president Oscar Benavides' quote.

And this is clearly what we are seeing in India, as the examples above highlight.

This is not an argument to expand the application of special laws and grave offences like the UAPA and sedition.

There are strong arguments for why these legal provisions – especially sedition, which has no place in a constitutional democracy – should in fact be repealed.

They can be misused to criminalise entirely legitimiate dissent, the procedural difficulties they impose on grant of bail allow pre-trial detention for years and years even though a trial is never going to take place anytime soon.

If retained, then they should only be used in the most serious of cases, where there is truly overwhelming material and evidence against an accused, that indicate genuine threats to the security of India as a nation.

No, the argument is that if the police and the NIA and our other investigating agencies can in fact apply their minds and not apply these kinds of provisions where the actions of an accused don't unreservedly fit the bill, then that should be the case across the board.

It is not only the Narsinghanands and Kapil Gurjars and John Cena-double Tejasvi Surya who should not be slapped with UAPA and sedition charges but the Disha Ravis and the Amulya Leonas and the Umar Khalids as well.

This isn't to say that no legal action should be taken when necessary. Maybe Umar Khalid did plan to organise large-scale protests which then got out of hand and where violence took place. But we have provisions in the IPC to deal with that, the ones on rioting, which are sufficient to deal with such actions.

The kind of overblown verbiage used by the Delhi Police to insist the organisation of protests and chakka jaams automatically rises to the level of terrorism offences is extremely questionable – but if this is the approach they are going to use, then use it everywhere, not just against the people their political masters don't like.

As a final point, the Narsinghanand saga also highlights another problem in India. While we may not want to encourage slapping the UAPA against someone like him, no matter how depraved his ravings, it also shows that our laws on hate speech like Section 153A of the IPC are not fit for purpose, as they neither address the substance of what hate speech does, and are not commensurate to the seriousness of the offence.

It might therefore be time for the Centre to dust off the Law Commission report which called for new provisions to deal with hate speech, which would allow law enforcement agencies to appropriately tackle hatemongers like Narsinghanand.

Of course, that would require a commitment to the rule of law which currently seems far from likely – but hopefully even those who support the current dispensation realise that if the rule of law is lost in this country, it will not leave them unscathed either.