The basic rule is bail, not jail, except-where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court.

– Justice V.R. Krishna Iyer, State of Rajasthan, Jaipur vs Balchand @ Baliay on September 20, 1977

Forty-eight years since the Unlawful Activities (Prevention) Act (UAPA) law, a bench of Justice Navin Chawla and Justice Shalinder Kaur of the Delhi high court, dismissing the bail of 10 accused in the 2020 Delhi riots conspiracy case, including former JNU students Sharjeel Imam and Umar Khalid, wrote: “Any conspiratorial violence under the garb of protests or demonstrations by the citizens cannot be permitted.”

The bench described the roles attributed to the accused as ‘prima facie grave’. According to the court, “they played their respective active role in the conspiracy and were involved in the creation of protest sites such as Khurji, Chand Bagh, Karawal Nagar, and Nizamuddin among others.” 

Obviously, the bench neither considered Articles 21 and 22, nor the above quoted Supreme Court judgment that sought to set up a precedent.

Senior advocate Trideep Pais, representing Umar Khalid before the Karkardooma court on September 2, 2025, argued, “There were two sets of people – one who were against the Citizenship (Amendment) Act and others in favour of it. The distinction between the accused and witness will tell you the bias of the police.” 

Even as the Delhi high court denied bail to Khalid and others on the same day and the bail plea moved to the Supreme Court, which moved the hearing from September 19 to September 22, declining interim bail, a bench of Justices Aravind Kumar and N.V. Anjaria fixed the date for October 7 to hear and decide the main petition. 

Importantly, it issued a notice to the Delhi Police to respond to the bail pleas of activists Umar Khalid, Sharjeel Imam, Gulfisha Fatima, Meeran Haider and Shifa Ur Rehman in the larger conspiracy case linked to the 2020 Delhi riots.

The sequence of events indeed creates a complex scenario at the end of the first quarter of 21st century India with no winners. A group of young, motivated protesters, mostly from “controversial-since-2014” Jawaharlal Nehru University in New Delhi, stood up against the controversial Citizenship Amendment Act and National Register of Citizens in 2019. The unbending ‘achchhe din aanewale hain’ (good days are coming) Narendra Modi government crackdown to save nationalism and conspire to implicate them to arrest them under the UAPA following a riot in north-east Delhi in 2020. 

The riot followed a threat issued by BJP MP Kapil Mishra on February 23, 2020, in the presence of then DCP Ved Prakash Surya, to the agitators either to withdraw the movement or face the consequence. Since the agitation continued, the following riot remains contentious regarding the role of the Shaheen Bagh protesters. However, the arrests that followed as a consequence, witnessed these students as well as mostly Muslim citizens from the affected areas being rounded up. Five years since, some have been bailed out, but several continue under incarceration. 

The ‘invent and weave’ evidence of the compliant, Delhi Police and the bail denial by the courts have left even the peaceful agitators opposing the CAA and the NRC in jails for over five years.

If we put these events under a lens, the political-legal-constitutional mess of the Indian republic is clearly visible. The criminal justice system, despite a revised CrPC, IPC and IEC, looks like a weak arm of a partisan Indian state brazenly running a bigoted and prejudiced system that blatantly punishes innocent citizens who have the zeal and capacity to stand up to assert the citizens’ rights before the powers that be.

The police

Vibhuti Narain Rai, a dedicated IPS officer who has studied riots in India and the role of police in controlling them over decades has argued that deep-rooted communal bias within the police and the administration has prevented them from controlling communal violence. While the police, particularly the constabulary and the lower rank officers, are influenced with sectarian feelings propagated by communal organisations over decades, the recent political developments in the country have contaminated even the higher ranks inflicted with communal viruses.

The regimes use rewards and punishments – choice transfers, postings and appointments to the apex levels, to poison the minds in the organisation from top to bottom. Since lately even the top leaders are unhesitant to trigger riots and influence the police to aid and abet violence, the police tamper with the evidence and write weak case diaries. In the 2020 Delhi riots, there were reports of tinkering from the very beginning. 

The police have unsurprisingly been indicted strongly by the courts. It must be noted that the Delhi Police are directly under the Ministry of Home Affairs. When the charge sheet moves to the court, the use of penal provisions leads to decision of bail or punishment. The misuse of special provisions such as the UAPA often become the deciding factor. It has naturally been so in the 2020 riot cases.

The courts

Despite the reiteration that bail is the rule and jail is the exception, the accused being incarcerated for over five years ignoring their bail petition and lack of evidence also put the judiciary at different levels in dock. 

For example, the pre-trial detentions by the judiciary at various levels in the Bhima Koregaon case and the cases of Umar Khalid et al are admonishing. The case of Kerala journalist Siddique Kappan on his way to report the Hathras rape and murder of a Dalit teen, detained by the UP police and kept for two years is another glaring example of misuse of police powers and laxity of the judiciary.

The judiciary prompt and lax in political cases, depending on which side it is passing the judgment on. The hesitation of judges in district courts to grant bail in politically sensitive cases has been attributed to a ‘sense of fear’, particularly in political cases. Analysts have pointed out that in such cases the tendency is to let the case pass from their desk to high courts – principally, the ambitious judges looking for a high court berth. The cases under the UAPA, PMLA and other such stiff laws are looked at by the judges with a keen eye that leads to avoiding granting bail.

The high court judges are also prone to such weaknesses. The possibility of a berth above is always a consideration, compelling them to take a non-controversial stance. In some cases, the post-retirement benefits lure some judges to avoid granting bail in politically sensitive cases. The objectivity in the judgment goes for a toss.

In the Supreme Court also, a variety of these factors weigh up for some of the judges. Politically sensitive cases invite caution. The judges are generally not bound to give reasons for their judgment, not even for granting bail. This must be made mandatory.

The evaluation

The evaluation of the judgments by the high courts and the Supreme Court present a mix picture of their discretion in cases of granting bail or dismissal of cases. In the Rahul Gandhi and Teesta Setalvad cases, the court is quick. However, in the Bhima Koregaon and the ongoing Umar Khalid et al cases, the Delhi high court appears to have been cautious, while the Supreme Court has been gingerly.

The writer, a political scientist, is Senior Fellow at the Centre for Multilevel Federalism. He was Atal Bihari Vajpayee Senior Fellow, Nehru Memorial Museum and Library, New Delhi, 2019-21 and Principal, Shaheed Bhagat Singh Evening College, Delhi University (2018).

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