The Supreme Court denied bail to Umar Khalid and Sharjeel Imam, while granting bail to five other co-accused, in cases arising from the February 2020 Delhi riots linked to the CAA protests.
They face charges under:
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Sections 13 & 16–18, UAPA, and
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Various IPC provisions.
Central Question
👉 Has the UAPA bail regime transformed dissent into “terrorism” and custody into punishment, undermining constitutional liberty?
How UAPA Evolved Into a Detention Law
Originally meant to regulate unlawful associations, UAPA has progressively hardened:
| Year | Expansion |
|---|---|
| 2004 | Broad definition of “terrorism” |
| 2008 | Section 43D(5) → near-absolute bar on bail |
| 2019 | Individuals (not just organisations) can be labelled terrorists |
📌 Result: UAPA today functions less as a conviction statute and more as a pre-trial incarceration mechanism.
From Protest to “Terrorism”
Core Critique
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Khalid is labelled the “intellectual architect” of violence
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No direct act of violence attributed to him
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Evidence relied upon includes:
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WhatsApp groups
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Protest speeches
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Phrases like chakka-jam, inquilab
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Explicit calls for non-violence are ignored
⚠️ Legal Problem
Section 15 UAPA requires violent intent or acts threatening India’s integrity.
Here, protest mobilisation itself is treated as terrorism — collapsing Article 19 freedoms into criminal suspicion.
The Bail Bar As Punishment
Section 43D(5) UAPA
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Bail denied if allegations appear prima facie true
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No statutory standard for assessing “prima facie”
Key Judgments
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NIA v. Watali (2019)
➝ Courts must largely accept prosecution material at bail stage -
K.A. Najeeb (2021)
➝ Bail possible where incarceration becomes disproportionate
📉 Reality
Najeeb remains largely symbolic.
Khalid has spent over 5 years in jail, trial not begun, ~1000 witnesses.
➡️ Delay is treated as factual, not constitutional harm, hollowing out Article 21.
When Bail Hearings Become Mini-Trials
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Prosecution version replayed in court
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Accused cannot meaningfully rebut
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Refusal of bail = real punishment
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Trial becomes secondary or illusory
🧠 Constitutional Fallout
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Violates Articles 21 & 22
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Presumption of innocence eroded
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Process itself becomes punitive
Selective Severity & Equality Breakdown (Article 14)
Judicial Inconsistency
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Delhi HC (Devangana Kalita, 2021): Protest ≠ terrorism
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Bombay HC: Demanded concrete evidence under UAPA
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Khalid’s case: Same conduct, harsher interpretation
📌 Difference is not conduct — it’s political context.
Systemic Pattern
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Activists, journalists, minorities → prolonged custody
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Politically aligned actors → swift relief
➡️ Law morphs from neutral adjudication into political discipline.
A Pattern, Not an Exception
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Conviction rate under UAPA ≈ 3% (NCRB data)
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Arrest → long detention → eventual acquittal or stagnation
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Father Stan Swamy’s custodial death underscores human cost
🌍 Global Concern
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Amnesty International: attack on free expression
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UN High Commissioner: misuse of anti-terror laws against dissent violates international law
What’s Really at Stake
This is not merely about Umar Khalid’s guilt or innocence.
The Constitutional Question
👉 Can India accept a legal system where:
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Protest = terrorism
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Bail = exception
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Incarceration = norm
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Trial = optional
If yes, UAPA ceases to be a law against terror
It becomes a law of terror — used against those who challenge power.
Bottom Line
Democracy cannot survive when:
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Criticism is criminalised
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Liberty depends on prosecutorial grace
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The process itself is punishment
🛑 This is a reversal of the constitutional order, not its protection.

