Umar Khalid is 38 years old. Sharjeel Imam is 36. Both have been in Tihar Jail since 2020. Neither has been convicted of anything. Their trial in the Delhi Riots conspiracy case has barely begun. The prosecution lists hundreds of witnesses. By any honest reckoning, the case will not end this decade.
Between January and May this year, the Supreme Court delivered three judgments that, taken together, tell us where their case now stands. The judgments deserve to be read in the order they were written. They show a court arguing with itself in public, and slowly arriving at a better answer.
The statute at the centre of all three is Section 43-D(5) of the Unlawful Activities (Prevention) Act, the UAPA. It tells a judge that bail must be denied if, on the face of the police case, there are reasonable grounds to believe the accusation is true. Read literally, the judge must assume the police are right, and then refuse liberty on that assumption.
Five years ago, a three-judge bench softened this in a case called the Union of India vs KA Najeeb. The court said something simple and humane. If trial is nowhere in sight, and a person has already spent years in jail, the strict bar on bail must give way to Article 21 of the Constitution, which protects personal liberty. Detention before trial, the court said, cannot become a sentence by stealth.