Umar Khalid | When Bail Becomes a Trial and Trial Becomes a Distant Dream

Umar Khalid, a former student leader from Jawaharlal Nehru University (JNU), was arrested on 13 September 2020 in connection with the northeast Delhi riots that occurred in February of the same year. The charges against him are serious and fall under multiple legal provisions like the Indian Penal Code, the Unlawful Activities (Prevention) Act [UAPA], the Arms Act and the Prevention of Damage to Public Property Act.

As of today, Umar Khalid has spent 1,357 days in jail since his arrest. In this period of detention, he has applied for bail multiple times but all attempts have failed.

In India, bail is decided on various conditions and ‘tests’ but in this case, the bail hearing at the trial court went on like a mini-trial for over eight months.

As per the Delhi Police's chargesheet, it has been alleged that Khalid was a member of WhatsApp groups like the Delhi Protests Support Group (DPSG) and the Muslim Students of JNU. While there is recurring mention of Khalid in relation to the alleged conspiracy in the chargesheet, the prosecution has particularly emphasised his speech given in Amravati, Maharashtra, on 19 February 2020.

Apart from alleging that the speech incited violence, the main thrust of the prosecution's reference to it is the specific mention of former US President Donald Trump's visit to India.

On 28 May, the district court in Delhi denied bail to Umar stating that this was the second bail application which was filed under Section 437 of the Code of Criminal Procedure (CrPC), 1973 read with Section 43D (5) of the UAPA.

The second bail was filed in view of the ‘change in circumstances’ as submitted by Khalid’s lawyer. It was pointed out that certain portions of the Supreme Court judgment in Vernon vs State of Maharashtra state that while deciding a bail application, the court must do a surface-level analysis of the probative value of the evidence, and the analysis has to be done in the same manner as in Vernon’s case.

At present, Umar Khalid has been charge-sheeted under Section 120B read with Sections 124A, 302, 207, 353, 186, 212, 395, 427, 436, 454, 109, 114, 147, 148, 149, 153A, 34 of the Indian Penal Code, 1860 and Sections 3 and 4 of the Prevention of Damage to Public Property Act,1984, Sections 25/27 of the Arms Act, 1959, and Sections 13, 16, 17, and 18 of the UAPA.

Here’s an overview of the bail journey which turned out to be more like a mini-trial within a trial itself.

FIR 101/2020

In April 2021, Khalid received bail from a trial court in Delhi against the charges levelled against him in FIR 101/2020. It is pertinent to note that Khalid was later discharged in the above-mentioned FIR (101/2020) but remained in jail over the allegations against him under FIR 59/2020.

FIR 59 OF 2020: The Grundnorm

In July 2021, Khalid moved his bail application in FIR 59/2020, before the sessions court in Delhi. The main argument of his lawyer, Trideep Pais, revolved around the fact that a prima facie case did not exist against Khalid. Further, it was also submitted that a communal angle was being forced on the CAA [Citizenship (Amendment) Act] protests and activities—which were secular and democratic in nature. 

It took the trial court around eight months to decide Khalid’s bail application. On 24 March 2022, the sessions court dismissed the bail application on the fact that “a preliminary assessment of the case indicates a premeditated conspiracy surrounding the Delhi Riots (2020).”

Delhi High Court

Then, in March itself, Khalid appealed to the Delhi High Court against the sessions court's rejection of his bail application. The said application was heard in April and concluded around September.

Trideep Pais submitted before the Delhi High Court that the main aim of citizens protesting against the Citizenship Amendment Act was to retain the unity and integrity of India and that the protestors wished to be a part of the country and were opposing allegedly discriminatory criteria of granting/denying citizenship to a certain class of persons. It was in no way an act against the sovereign.

“In any case, it was not perpetrating violence which Section 15 of the UAPA contemplates. He stressed the point that 'Terrorist Act' as defined under section 15 of UAPA is not made out in the present case," he submitted.

After a marathon hearing, on 18 October 2022, the bail appeal was dismissed by the division bench of Justices Siddharth Mridul and Rajnish Bhatnagar. The court said, “We don’t find any merit in the bail appeal and the bail appeal is dismissed.”

After this, Khalid then moved a bail application before the district court seeking a two-week interim bail to attend his sister’s marriage.

For the first time, on 12 December 2022, after his arrest, the district court granted interim bail to Khalid for a week to attend his sister's marriage ceremony. It is interesting to point out that even then, the Delhi Police had opposed the bail application claiming that he would "likely spread misinformation by use of social media" during his release and is also "likely to cause unrest in the society."

But the same was neglected by the court. Al Jazeera reported, “Additional Sessions Judge Amitabh Rawat on Friday granted the relief to Khalid, who had sought two weeks in his bail application. But the judge also imposed stiff conditions on Khalid in awarding him the temporary reprieve, asking him to avoid speaking with the news media or even communicating on social media.”

Another Bail, Another Mini-trial: Supreme Court and Adjournments

In April 2023, after the rejection order, Khalid filed a Special Leave Petition (SLP) in the Supreme Court appealing against the High Court’s decision that rejected his bail in October 2022. The SLP was heard for the first time in May by a bench comprising Justices AS Bopanna and Hima Kohli, which issued a notice to the Delhi Government.

It is interesting and unfortunate at the same time, that in 2023, Khalid’s application never got a substantive hearing in the Supreme Court at all. The table below clearly reflects how the case was occasionally adjourned and in 2023, no substantive hearing was given to his bail application.

Many may wonder about the “change in circumstances” in the case when Senior Advocate Kapil Sibal sought to withdraw the bail application and said that he would try his luck at the trial court.

Hence, even before the Supreme Court, there was no luck for Khalid and his bail application was heard and listed for over months like a mini-trial without any substantive hearing.  

The Ghost Of UAPA

The present case also involves the applicability of the Unlawful Activities (Prevention) Act.  Section 43D of UAPA deals with the bail provision and it is set out below: 

 “Section 43D. Modified application of certain provisions of the Code. − (1)­(4):­   

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:  

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.  

(6) The restrictions on granting of bail specified in sub−section 

(5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail. 

(7) Notwithstanding anything contained in sub−sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country  unauthorisedly   or   illegally except in very exceptional circumstances and for reasons to be   recorded in writing.” 

Although the UAPA remains one of the most stringent laws in India, it is not that the court has not granted bail to any accused charged under the UAPA. We can take the case of Varavara Rao, an 82-year-old poet and activist, who was released on bail by the Supreme Court of India.

A bench comprising Justices UU Lalit, Aniruddha Bose, and Sudhanshu Dhulia took into account his age, his medical conditions, and most importantly, the two-and-a-half-year period of actual custody spent by him.  

When the bench inclined its inclination to grant bail on medical grounds to Varavara Rao, the state submitted that medical grounds are not available under the UAPA, to which the Court referred to the 2021 judgment in Union of India vs Najeeb, which held that Section 43D(5) UAPA does not limit the power of constitutional courts to grant bail on the grounds of violation of fundamental rights. 

In this case, the Supreme Court laid down the yardstick for courts to consider a bail application of the accused charged under the UAPA and said that if there is no likelihood of the trial being completed within a reasonable time, then the courts may grant bail.  

“17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at the commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.” 

On a similar note, Gautam Navlakha, a journalist and activist was arrested on 14 April 2020 for his alleged involvement in the violence that erupted at the Bhima Koregaon village in Pune district on 1 January 2018. He had been in jail for over three years and eight months when the Bombay High Court granted bail to Navlakha. While granting bail, the court observed that “the actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and/ or statements of the witnesses.” 

The recent dismissal of Khalid’s bail application indicates that the clock of appeals has started again. The UAPA is a stringent provision but if the court prima facie thinks that there’s no “allegation” against him then bail may be granted in such a case, as discussed above.

Most recently, in the judgment of Khursheed Ahmad Lone vs Union Territory through Police Station Anantnag, the Jammu and Kashmir High Court granted bail to an accused charged under the UAPA. Justice Atul Sreedharan opined that arguments against bail in such cases by the prosecution are just “copy-paste”. In para 7, he remarked:  

“Besides the above, the usual stock arguments that are made in a case under the UAPA that the offence is heinous, it is against the interest of the nation to let the appellant out on bail, that if the appellant is let out on bail, he would interfere with the judicial process and may influence the witnesses and that the appellant would repeat the offences, and that his release would be counterproductive for the unity and integrity of India, have also been advanced. These arguments are “copy paste” in every case under the UAPA. In fact, experience has shown that the main thrust of the prosecution’s arguments is usually on these aspects, rather than the specific material, which appears, against an accused person. The initial and main thrust of the UT’s arguments is to make an attempt to psychologically overawe the Court by bringing in elements of National Security, Nationalism, Allegiance to Pakistan (of the accused), Radical Islam – Islamist and Islamism (as the influence on the accused), Secession of Jammu and Kashmir from India and its accession to Pakistan (as the goal of the accused) etc., which this Court acknowledges as elements relevant in a case under the UAPA but which should be supplemental submissions in addition to the material raising a prima facie view that the accused may have committed the offence. But to be influenced by the often-forceful submission of internal security of the State, and to reject a bail application where the State has utterly failed to disclose any material against the accused which could raise a prima facie view of the involvement of the accused as charged by the State, is a sure shot recipe for miscarriage of justice.” 

An overbearing subliminal belief in the primacy of internal security of the state in the subconscious mind of the judge could result in the inadvertent and oppressive application of a draconian law resulting in the denial of liberty, unsupported by judicially cognisable material, said Justice Sreedharan.  

Even in KA Abbas vs State of Jammu and Kashmir, the Supreme Court criticised the use of preventive detention laws like the Public Safety Act in conjunction with the UAPA, stressing the need for adherence to procedural safeguards and timely review of detention orders. The court also highlighted the importance of judicial oversight to prevent the misuse of stringent laws and ensure that individual rights are protected, even in cases involving national security.

Khalid’s bail has taken so much time that it makes us wonder how much time would be actual trial take. The bail hearings were like a mini-trial. Everyone has a right to a speedy trial. Let us hope that Khalid’s bail is listed, heard, and decided again. Personal liberty is one of the most important facets of Article 21 and the Indian Constitution.  

The words of the French thinker Voltaire on internal security are relevant when he says, "Beware of the words 'internal security'=, for they are the eternal cry of the oppressor." 

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)