Guilty or Not, Umar Khalid Will Be in Jail for Years. Here’s Why

SC’s Watali judgment stops courts from granting bail in UAPA cases even if the evidence is blatantly unreasonable.

Picture this.

One day, your doorbell rings. At the door, you find a bunch of police officers who say they need to speak to you regarding some unrest which took place in your city/town/village a few months ago. Being a law-abiding citizen, you go with the police to the local thana.

You answer their questions about your whereabouts, you inform them of how you participated in protests against what you believed to be a draconian law or explain the work you do for helping marginalised communities. No incriminating material is found on your person, your bank and phone records show no connection to any wrongdoing.

You’re still arrested by the police, who say that they believe you have committed an offence under the Unlawful Activities (Prevention) Act 1967. They say you’ve been involved with planning and plotting terrorist activities, and that they have evidence to back this up. You are not provided with this evidence.

After the police get custody of you, you apply for bail. When the matter comes up to the special court hearing the case, the police inform them that they have an incriminating document that shows you were in contact with officials of the Pakistan High Commission and agents from China and that you were at the centre of a hawala operation to fund terror activities.

The ‘incriminating document’ is a loose sheet of paper with typed (not handwritten) information which does not mention you by name or your bank account, or any of the agents you were supposedly in contact with, but says someone with a random initial was involved in the hawala operation.

The police also say they have witnesses who have provided statements setting out your role in the whole conspiracy. You ask for copies of the witness statements.

The police provide some disclosure statements under Section 161 of the Code of Criminal Procedure (CrPC) which all use the same language and spelling errors, and contain no specific allegations against you, or explain what evidence against you was recovered based on them. You point out that these statements are inadmissible evidence and don’t even show you are guilty of anything.

They also say they have statements recorded by witnesses before magistrates under Section 164 of the CrPC, which are admissible evidence. But you can’t be given access to those witness statements because they need to protect the witnesses. You say you’re happy for the police to redact the statements to ensure the witnesses can’t be identified. They refuse, and then decide not to even provide them to the judge or reference these statements in their charge sheet against you.

The special court judge hears the police, looks at what they’ve provided to them, and refuses your bail application, saying the law doesn’t allow them to grant you bail. Appeals to the high court and Supreme Court are also turned down.

You remain in jail for years without your trial beginning as new supplementary charge sheets are filed every six months after the police arrest someone new.

Four years later, your trial takes place. The incriminating document turns out to be irrelevant. The statements under Section 161 are inadmissible evidence. The ones under Section 164 statements turn out to never have mentioned you.

You’re free to go, after spending five years (by the time the trial is over) in the renowned hospitality of an Indian jail, your career ruined, your relationships broken.

Oh, and don’t expect to be compensated for any of your trauma, even if it turns out the case against you was wrongful and malicious.

Sounds a Bit Fantastical, Doesn’t It?

This may all seem a bit over the top, but this is a cold, hard reality when it comes to cases invoking the UAPA in India.

Don’t believe the timelines? Just ask the accused in the Bhima Koregaon case, who not only face charges on the basis of such evidence in the ongoing case against them (which has seen them jailed for over two years) but several of whom have also faced similar charges and been acquitted or discharged in the past (after four years or more behind bars).

Don’t believe the Kafka-esque stuff about the evidence? Just ask Zafoor Ahmad Shah Watali, a name you aren’t likely to have heard of, but which is set in stone in the law which makes all this possible.

Don’t believe that UAPA cases, with all the seriousness of what such charges apply, are so flimsy? Just ask the accused in the 67 percent of cases that resulted in acquittal or discharge.

So, no, dystopian and unbelievable as it may be, that little hypothetical set out above is actually grounded in the way the UAPA has allowed people to be kept in jail for years without trial, a process that is the punishment regardless of what the final verdict against them turns out to be.

Perhaps most incredibly, the fact that this is the reality of UAPA cases isn’t a result of the police misusing the law, or the lower courts misinterpreting it.

This ability to deny bail even when there is little to no reasonable evidence against a person comes from the UAPA itself, and has been laid down to be the correct interpretation of the law by that protector of fundamental rights, the Supreme Court of India.

What Does This Have to Do With Umar Khalid?

Okay, the law itself doesn’t have anything to do with Umar Khalid himself. But whether you love him or hate him or are just indifferent to him, Khalid’s case is in the eye, after he was recently arrested by the Delhi Police under the UAPA for allegedly being part of the conspiracy behind the Delhi riots.

And Khalid’s case will be a useful study to see how the UAPA will be used to keep a whole host of political protesters like him behind bars for years to come, regardless of the evidence against them or whether they are found to be guilty at the end.

On Wednesday, 16 September, the Special Cell of the Delhi Police submitted its 17,000-page charge sheet to a Delhi court regarding ‘FIR 59’, which deals with the big conspiracy. This mammoth charge sheet does not even address the accusations against all those accused of being part of the conspiracy, including Khalid – for that, there will be supplementary charge sheets filed in the months to come.

That should make it clear that we are not going to see a trial in this case for a long time to come – much like the Bhima Koregaon case, where the first charge sheet was filed in November 2018, but the trial is still a distant dream. Every time more activists are arrested in that case, as just happened in September, the police get more time to file additional charge sheets, delaying the start of the trial.

Umar Khalid’s arrest, months after the first arrests under FIR 59, indicate a similar approach here as well. What we know of the evidence against Khalid by the police includes disclosure and witness statements, claims he was part of a conspiracy to disrupt Donald Trump’s visit even before anyone knew the US President was visiting, and speeches where he expressly said people shouldn’t resort to violence.

Perhaps the eventual supplementary charge sheet will add something more.

But Wouldn’t They Get Bail if There’s No Evidence Against Them?

So why is Umar Khalid – like all the other accused in FIR 59 (except Safoora Zargar, who got bail on humanitarian grounds) – going to be stuck in jail for years to come now?

The answer lies in Section 43D(5) of the UAPA.

In regular criminal cases, bail is supposed to be the norm and pre-trial jail the exception. If the accused can show that they are cooperating, are not likely to repeat the alleged offence, are not going to abscond or threaten witnesses or tamper with the evidence – the court can grant them bail, even for what are termed non-bailable offences.

However, Section 43D(5) of the UAPA says that a person accused of an offence under Chapters IV and VI of the UAPA (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

The police and the NIA have viewed this provision over the years as an embargo on anyone getting bail in a case where there are terror charges thrown in under the UAPA, regardless of the actual evidence against them. Trial courts have also, over the years since this provision was added to the UAPA in 2008, viewed the provision as such, because of its usage of the term ‘prima facie’.

In 2018, however, the Delhi High Court was hearing the case of Zahoor Ahmad Shah Watali, an accused in an NIA case, who had sought to get bail because of the sketchy evidence against him – evidence in the nature of the hypothetical at the start of this article.

The trial court had refused bail to him based on Section 43D(5) of the UAPA, but the Delhi High Court found that, given the nature of the evidence, there were “no reasonable grounds” to find that the allegations against Watali were prima facie true.

The high court judgment was a welcome one, which acknowledged the high burden that was placed on the accused in such cases and how the UAPA made it nearly impossible to get bail. It infused a sense of fairness into the process by requiring the courts to assess the reasonableness of the case against an accused, rather than just throw someone in jail because the police produced some random papers claiming they were guilty.

And then in April 2019, the Supreme Court undid all that. In a judgment authored by Justice AM Khanwilkar, the apex court held that the Delhi High Court’s approach was “inappropriate,” as at the stage of bail, the court wasn’t required to weigh the evidence against an accused, it was only supposed to look at the material provided by the investigation in its entirety and see if there was a prima facie case.

The Supreme Court has therefore said that it doesn’t matter what the police has against you, you can’t get bail if a UAPA terror charge is invoked. It doesn’t matter if the evidence appears fabricated (as Justice DY Chandrachud had found regarding some of the material in the Bhima Koregaon case). It doesn’t matter if the evidence cannot actually be used against you. It doesn’t matter if the evidence is absolutely irrelevant.

If the police say it shows you’re tied to the crime, you’re stuck in jail, even if the court can clearly see what’s going on.

That’s why, regardless of the concerns over the Delhi Police’s investigation into the Delhi riots, regardless of the fact that only anti-CAA protesters are being accused of instigating the violence, regardless of the extremely dubious evidence against the accused, Umar Khalid and co are set for a long spell behind bars. Even if it turns out they never committed any crime and that the Delhi Police’s investigation was biased.

And that will be with the stamp of approval of the highest court in the land.