Burying justice in the Umar Khalid trial

WHAT does it say about our democracy when young men and women spend more than five years in prison without a finding of guilt?

That is where Umar Khalid, Sharjeel Imam and others find themselves today. They are not convicts. They are undertrials, still presumed innocent. Yet, because of the Unlawful Activities (Prevention) Act and the Delhi High Court's September 2025 order, they remain jailed.

Their speeches, pamphlets and WhatsApp groups have been read as evidence of conspiracy. Meanwhile, the trial limps along under the weight of tens of thousands of pages. The Supreme Court in KA Najeeb (2021) had warned against exactly this: liberty cannot be suspended while cases drag on. That warning has been ignored.

The high court relies on the precedent of Watali (2019), which tells judges to accept the prosecution's case at face value at the bail stage. Suspicion, not proof, becomes enough. The court insists that it is not holding a 'mini-trial'. But what it actually does is worse: it abandons scrutiny. Vague witness statements are taken as gospel.

A WhatsApp group becomes a smoking gun. Speeches invoking non-violence are twisted into calls for bloodshed. If liberty is denied on such grounds, what remains of the trial, but theatre?

Conspiracies can be proved indirectly, but even circumstantial proof requires coherence. Here, dissent against the Citizenship Amendment Act is equated with a grand plan to burn Delhi.

Take Umar Khalid's Amravati speech of February, 2020. The court says that he "urged protests on 24.02.2020, which coincided with the State visit of the President of the USA" and that "such timing was deliberately chosen to cause violent riots…to garner international attention."

Yet, the actual transcript shows him telling his audience: "We won't respond to violence with violence. We won't respond to hate with hate. If they spread hate, we will respond to it with love. If they thrash us with lathis, we will hold the Tricolour higher."

The court brushes past these categorical appeals to non-violence and reads into his mere reference to Trump's visit an intent to incite riots. The leap from "hold the Tricolour higher" to "mastermind of communal violence" is not inference, but suspicion.

With Sharjeel Imam, the court highlights his speeches at Jamia, Aligarh, Asansol and Gaya. It cites lines where he spoke of "permanently cutting off Delhi from the rest of India" or treating chakka-jaam as a "spark".

But what was a familiar protest tactic — road blockades and sit-ins — has been elevated into prima facie evidence of terrorism. The judgment ignores that the Allahabad High Court, evaluating the same Aligarh speech, found "absolutely no instigation to violence" and granted him bail. By criminalising rhetorical flourishes and overlooking explicit calls for peace, the court has made ideology itself the crime.

The judgment acknowledges that Article 19 protects peaceful protest, quoting Mazdoor Kisan Shakti Sangathan and even the Supreme Court's 2025 decision in Imran Pratapgadhi. But then, it accepts the prosecution's narrative that the anti-CAA protests were violent by design. But protest in India has always been disruptive.

From the Dandi March to anti-Emergency rallies, to sundry rath yatras and marches, sit-ins and roadblocks have been part of our democratic grammar. To brand such acts as "terrorist activity" is to criminalise democracy itself. To reduce the CAA protests to a riot plot is to erase the memory of ordinary women and men who stood up for the Constitution.

Several co-accused — Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha — are already out on bail. In principle, others similarly placed should get the same relief.

The court sidesteps this by citing the SC's instruction that earlier bail orders "shall not be treated as a precedent." But Khalid's and Imam's roles are no greater than those already freed.

By declaring their involvement "graver" without showing how, the court avoids the hard question of equality before law. The court also shrugs off long incarceration. Five years behind bars is treated as "natural" because trials take time. But Article 21 promises liberty through a fair and timely process, not liberty after a decade of waiting. Justice delayed is justice denied —here, it is justice buried.

The judgment reveals a deeper tilt. Every prosecution claim is accepted. Every defence is dismissed. Absence from riot sites? Ignored. No recovery of weapons? Irrelevant. Calls for peace? Recast as coded violence. If courts are unwilling to protect dissenters against such overreach, the message is unmistakable: liberty is conditional, and the condition is silence.

This case is not just about Khalid or Imam. It is about the space for dissent in India. If protest can be read as terrorism, who will dare organise? If WhatsApp groups are conspiracies, who will dare join them?

The chilling effect is already visible on our campuses and public squares. More dangerously, the judgment rewrites history. The anti-CAA movement was a constitutional mobilisation.

By painting it as a terror plot, the court delegitimises an entire movement and retroactively criminalises thousands of peaceful protestors. This criminalisation was also attempted with the farm laws protest, but thankfully not proceeded with. As we see the Maratha reservation crowds throng South Bombay, it is not hard to perceive the chilling effect of such a judgment.

The court repeats the mantra of "balancing liberty with security." But in its version, security always wins. That is no balance at all. Benjamin Franklin presciently warned two centuries ago: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

A citizen's democracy must protect both liberty and security. The test is proportionality. Five years in jail without trial for words and protests is not proportionate. It is punishment without conviction.

The accused may appeal to the SC. But unless Watali is revisited or Najeeb given its full play, bail under the UAPA will remain a mirage: promised in theory, impossible in practice. Parliament, too, cannot avoid responsibility.

A law that makes denial of bail the default undermines democracy. Section 43D(5) of UAPA, which does exactly that, needs urgent reform. At stake is not one case, but the Republic itself. Are we still a constitutional democracy that protects dissent? Or are we a security state that warehouses critics until they break?

The high court's order chooses suspicion over liberty and delay over fairness. History will ask why courts, the guardians of liberty, let political prisoners languish without trial. History will also ask other citizens who kept a prudent silence what fight they put up against the dying of the light.

The Republic deserves better. The answer must come not from police files or ministerial speeches, but judicial courage. The health of our democracy will always be judged not by how we treat the powerful, but by how we protect the last, the lost and the least.

Sanjay Hegde is a senior advocate in the Supreme Court.