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Opinion: Why is Umar Khalid not being granted bail even after spending four precious years of his life in prison?
By Naren Singh Rao
The incarceration of Umar Khalid, an idealist and conscientious student leader, continues unabated year after year. Indeed, since the past four years, his bail applications have been summarily rejected innumerable times at every judicial avenue in the country.
It is worth noting that his co-accused, Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, were granted bail long ago, in June 2021, while granting bail, the court eloquently observed in its order:
“We are constrained to express, that, it seems, in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy.”
Despite this, oddly enough, the right to bail continues to evade Khalid in a downright absurd manner.
This raises an important question: Why is he not being granted bail even after spending four precious years of his life in prison?
The answer to this question is quite unambiguous. The abject failure on the part of the judges to apply sound judicial reasoning is mainly responsible for him suffering the ongoing and much-prolonged incarceration.
Notably, his bail denial hinges exclusively on wafer-thin ‘evidence’. It is based on the statements of witnesses and WhatsApp group chats, which the prosecution contends is sufficient to infer his involvement as a criminal in a ‘premeditated conspiracy’.
It is important to mention here that Khalid has been charged with several counts under the criminal law. Considering his track record of dedicated activism and exemplary academic research, the entire set of charges and the narratives of the prosecution appear outlandish, absurd and laughable.
The list of charges includes the Indian Penal Code’s (IPC) Sections 302 (punishment for murder), 147 (punishment of rioting), 148 (rioting, armed with deadly weapons), 149 (every member of an unlawful assembly guilty of the offence committed), 124A (sedition), and 153A (promotion of enmity between groups on the ground of religion, race, place of birth, residence), etc.
In addition, in keeping with the regrettably entrenched and abominable practice followed by police agencies in India, which often involves pursuing the cases on the lines of the dictum ‘the process is the punishment’, it is quite unsurprising that Khalid faces charges under Sections 13 (punishment for unlawful activities), 16 (punishment for terrorist acts), and 18 (punishment for conspiracy) of the much-abused, draconian law, the Unlawful Activities Prevention Act (UAPA).
Needless to say, the mere charge under the Sections of the UAPA, in practical terms, makes the right to bail almost impossible. Under this, the onus of proving innocence shifts to the accused individuals. Surely, this stands in sharp contravention of one of the fundamental tenets of the modern criminal justice system — that the prosecution needs to establish and prove its case beyond reasonable doubt.
Importantly, the repeated applications for bail submitted on behalf of Khalid have consistently been met with abject disapproval. This struggle began in March 2022, when a sessions court judge rejected the scholar’s bail plea.
A perusal of the judgement abundantly proves that the judge’s decision suffers from deep executive-mindedness; in the sense that it is premised upon the prosecution’s much weaker theory, being nothing short of a conspiracy theory, which, heavily relies on scant shreds of evidence, largely falling within the ambit of inadmissible evidence.
Surprisingly, the appeal against this was rejected by the high court of Delhi in April 2022. Aggrieved by this, Khalid was compelled to approach the Supreme Court by way of a Special Leave Petition.
The turn of events that have taken place in Khalid’s struggle for bail in the Supreme Court presents a disconcerting reflection of the apex constitutional court of the country. This underscores the pervasive presence of systematic, structural and ideological challenges that currently impede the dispensation of justice within the highest echelons of the Indian judiciary.
Khalid’s applications for bail, on more than ten different occasions, have come up for hearing before various benches of the Supreme Court. Each time, there have been bizarre reasons for the delay, such as a judge recusing himself from hearing the case without citing any reasons, or, the prosecution seeking adjournment for the ‘filing of counter-affidavits’.
The objection raised by Kapil Sibal, a distinguished legal representative for Khalid in the Supreme Court, sheds light on the employment of delaying tactics in the courtroom. He articulated, “In a bail matter, what counter is to be filed? Khalid has been incarcerated for two years and ten months.”
The trajectory of his bail applications in the apex court bears an uncanny resemblance to the ominous and dystopic reality often portrayed in Kafka’s literary works, wherein, the system of law and justice frequently transmutes into a mechanism of injustice.
After hopelessly failing to secure bail for him in the highest court of the land, his lawyers decided to withdraw the bail application from the Supreme Court. However, officially and diplomatically, they went on to maintain that they were withdrawing it due to a ‘change in circumstances’ and that they would like to ‘try his luck’ in a lower court.
Certainly, this chapter is poised to be remembered as one of the darkest in the history of the Supreme Court. It has squarely failed to safeguard the fundamental right to personal freedom of a young social activist and a brilliant scholar, who has been in prison for years as an undertrial, based on largely inadmissible evidence.
Justice DY Chandrachud, the Chief Justice of India (CJI), recently remarked, ‘‘…the trial court judges are increasingly playing it safe, not granting bail on important issues of serious crimes.’’
Ironically, the CJI’s remarks not only pertain to the lower judiciary but also hold relevance for significant sections of the highest judiciary. There is indeed a growing, discernible inclination towards accepting the prosecution’s theory, in a rather stenographic fashion, while not applying the substantive application of judicial scrutiny.
The current narrative extends beyond the legal predicament of Umar Khalid. This encompasses the legal plight of innumerable ‘citizens of conscience’ like Gulfisha Fatima, Sharjeel Imam, Khalid Saifi and Shifa-ur-Rahman, who, while facing similar challenges, have been languishing in prison year after year without any recourse to a ray of hope for justice.
Not to mention, thousands of impoverished citizens continue to suffer, often on charges of petty crimes, in the dark holes of Indian prisons as ‘under-trials’ because of their ‘sin’ of poverty, due to which they cannot reclaim their fundamental rights — personal liberty and freedom of conscience guaranteed by the Constitution of India.
Based in Delhi, Naren Singh Rao is lawyer and academic.