UAPA and the Death of ‘Bail Is the Rule’: Delhi HC Keeps Umar Khalid, Sharjeel Imam, Gulfisha Fatima and others Behind Bars

On 2 September, the Delhi High Court delivered a much-awaited verdict, dismissing a batch of criminal appeals and upholding the denial of bail to a group of activists/students, including Umar Khalid, Sharjeel Imam, and Gulfisha Fatima, arrested in connection with the 2020 Delhi riots. While the court asserted that the "right to protest is not absolute," a more fundamental right appears to have been eclipsed: the right to a fair and speedy trial.For over five years, these individuals have languished in jail, their presumption of innocence rendered meaningless by a legal process that has yet to even begin their trial. In these cases, where the spectral weight of the Unlawful Activities (Prevention) Act (UAPA) looms large, bail has ceased even be an exception; it has become an impossibility. This raises a grave constitutional question about the very nature of liberty and justice in modern India.The table above reflects that almost every accused has completed more than five years in prison without any trial at hand. This not only reflects the ‘slow-paced’ trial, but also violates the basic principle of ‘speedy trial’ which is guaranteed by the Indian Constitution. It is ironic that we are living in times when courts have been denying bail to under-trial ‘accused’, but on the other hand, rape convicts are out on parole, that too on numerous occasions.The fundamental rights to life and liberty under Article 21 are not absolute, they are subject to reasonable restrictions. However, this caveat applies equally to the state's power to detain. The right to keep an accused behind bars without the commencement of a trial is not absolute either. By allowing the clock to be stopped through the UAPA's bail provisions, the system effectively sanctions a perpetual pre-trial punishment. This creates a two-tiered justice system: one for ordinary crimes, where the constitutional principle of "bail is rule, jail is exception" is increasingly upheld by the Supreme Court, and another for those accused under security laws, where the exception grotesquely swallows the rule.In its judgment, running into 133 pages, the Delhi High Court justified as to why bail should not be granted to these accused persons. In Para 147 of the judgment, the High Court has taken into consideration the fact that the trial is being delayed. It, nevertheless, justified the same proposition by relying on the ‘weightage’ of the number of pages (3,000) of the chargesheet and 30,000 pages of electronic evidence. But, one may ask whether quality can supersede the norm.It is unfortunate that even after five years in prison, the High Court did not consider the aspect of ‘speedy trial,’ which has been recognised and acknowledged by the Supreme Court in numerous judgments.On the other hand, while denying bail to Umar Khalid, Sharjeel Imam, and others, the High Court observed that the trial need only progress naturally, as a “hurried trial” will be detrimental both to the accused and the State.“…. the pace of the trial will progress naturally. A hurried trial would also be detrimental to the rights of both the Appellants and the State,” a division bench comprising Justice Shailender Kaur and Justice Navin Chawla said.The High Court rejected the principle that prolonged imprisonment without trial is a universal ground for bail and the bench of Justices Shailender Kaur and Navin Chawla held that the right to protest and dissent is not absolute and must yield to national interest and public safety when actions allegedly cross into conspiratorial violence.For each accused, including Gulfisha Fatima, Meeran Haider, and others, the court detailed their specific, active roles in the conspiracy—from creating protest sites and WhatsApp groups to discussing violence and destroying CCTV cameras. This prima facie evidence, the court concluded, creates an "arduous task" to balance individual liberty against the state's duty to protect the nation's integrity, ultimately leading to the dismissal of all bail appeals.It is profoundly ironic that the High Court, while dismissing the bail appeals of Umar Khalid and others, relied upon the Supreme Court's judgment in Imran Pratapgarhi vs. State of Gujarat. The irony lies in the Court's selective reading of that verdict.“From the conjoint reading of the extracted observations, it emerges that certainly, the Constitution affords citizens the right to protest and carry out demonstrations or agitations, provided that they are orderly, peaceful and without arms. More so, the citizens have a fundamental right to voice their concerns against the legislative actions, which only fortifies the Democratic setup by indicating the participation of the citizens in governance. This right is crucial, as it enables the citizens to express their dissent, expose flaws in governance, and demand accountability from the State Authorities. However, such actions must be within the bounds of law.”Observation by the High CourtThe Imran Pratapgarhi case involved charges against a Rajya Sabha member for reciting a poem at an event against which an FIR was filed in Gujarat. The same was quashed by the Supreme Court. The operative essence of the Supreme Court's ruling was a robust affirmation of dissent's vital role in a democracy, ultimately granting him relief.By citing this very judgment to justify the continued incarceration of the Delhi riots accused, the High Court appears to have weaponised a precedent intended to protect free expression, using it instead to deny liberty—thus turning a shield for democratic rights into a sword against them."Free expression of thoughts and views by individuals or groups of individuals is an integral part of a healthy civilised society. Without freedom of expression of thoughts and views, it is impossible to lead a dignified life guaranteed under Article 21 of the Constitution. In a healthy democracy, the views of thoughts expressed by an individual or group of individuals must be countered by expressing another point of view…Even if a large number of persons dislike the views expressed by another, the right of person to express the views must be respected and protected. Literature including poetry, dramas, films, satire, and art make the life of human beings more meaningful," the Supreme Court observed in Imran Pratapgarhi case. Gautam Bhatia, in this book, The Indian Constitution: A Conversation With Power, has rightly argued that a deeper look at the provisions of the Indian Constitution reveal a "more restricted vision of the people as constitutional actors, and a structure of representative democracy that combines internal restraints (the separation of powers between the wings of State) within the thinnest form of external restraints (periodic suffrage).""While constitutional change is limited to supermajorities in Parliament (and, for some subjects, majorities in state legislatures) the Constitution is silent on all other forms of public participation in the practice of constitutionalism.”Gautam Bhatia in 'The Indian Constitution: A Conversation With Power''Nurturing Hope in Prison a Risky Business': Umar Khalid Writes from Tihar JailIn the criminal appeals of Umar Khalid and others, the main hurdle was UAPA. It is easy to get out of ‘hate speech’ charges with nothing but a smile, but bail becomes a hurdle for those charged with UAPA.On the other side, it is pertinent to point out that in the last few years, a series of Supreme Court judgments have reshaped bail jurisprudence in special statutes, directly challenging the culture of indefinite pre-trial incarceration under stringent laws like the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA).The Supreme Court had repeatedly affirmed that the foundational principle of criminal law "bail is the rule, jail is the exception"—must prevail even in cases involving these special statutes.This evolving jurisprudence prioritised the fundamental right to liberty and a speedy trial under Article 21 of the Constitution, asserting that prolonged imprisonment without trial constitutes a severe violation of personal freedom, unlike the Delhi High Court verdict.In Javed Gulam Nabi Shaikh vs State of Maharashtra (July 2024), for instance, the Supreme Court held that the state cannot oppose bail on the grounds of a crime's seriousness if it cannot guarantee a speedy trial, a right that applies "irrespective of the nature of the crime." This was expanded in Sheikh Javed Iqbal vs State of Uttar Pradesh (July 2024), where the Court explicitly stated that restrictive statutory provisions cannot override the constitutional courts' power to grant bail when Article 21 is infringed. Crucially, in Jalaluddin Khan vs Union of India (August 2024), the bench reinforced that the "bail is rule" doctrine holds good even under stringent statutes, with the only modification being that the court must ensure the conditions within the law are satisfied before granting release.This judicial repositioning was further underscored in Prem Prakash vs Union of India (August 2024), where the Supreme Court ruled that the restrictive twin conditions of Section 45 of the PMLA can be "suitably relaxed" to grant conditional liberty after an accused has spent a considerable time in custody with no trial in sight. Similarly, in Manish Sisodia vs Directorate of Enforcement (August 2024), the Court lamented that lower courts have forgotten the core principle, playing it safe by denying bail and thereby adding to the pendency of cases. Collectively, these rulings assert that the presumption of innocence cannot be suspended indefinitely by the mere invocation of a draconian law, signalling a much-needed corrective to India's bail landscape.Now, the accused will most likely prefer an appeal before the Supreme Court. The question is, will the Supreme Court abide by its own principle of 'bail, not jail', even in special statutes. Many judges like Justice Abhay S Oka, have been very vocal about grant of bail. But the Delhi High Court's dismissal of Umar Khalid's bail appeal - legally framed within the confines of the UAPA - underscores a deepening crisis. It is a verdict that prioritises the alleged severity of the crime over the undeniable severity of prolonged incarceration without trial. As the Supreme Court itself has powerfully reiterated in numerous judgments (discussed above), the gravity of the accusation cannot, by itself, be a ground to deny bail when the trial is not progressing. The continued imprisonment of Khalid and others, therefore, is not merely a question of bail eligibility but a fundamental test of India's commitment to constitutional due process. It asks a simple, haunting question: how long can a democracy keep its citizens in prison while it assembles its case to prove they should be there?(Areeb Uddin Ahmed is an advocate practising at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)'Trial Moving at Natural Pace': HC On Denying Bail to Umar, Sharjeel & Others

BECOME A MEMBER

Umar, Sharjeel & Others Trapped in a System That Has Forgotten Justice

Five years in jail, no trial. Delhi HC denies bail under UAPA—when liberty itself becomes the casualty of justice.

Read Latest News and Breaking News at The Quint, browse for more from opinion

Topics: Sharjeel Imam delhi riots charge sheet Gulfisha Fatima