The continued custody in Delhi Riots cases is an injustice

The order of the Supreme Court of India on January 5, 2026, in the Delhi Riots ‘Larger Conspiracy’ Case, where it granted bail to five individuals but denied it to Umar Khalid and Sharjeel Imam has, once again, raised questions about the way in which our legal system deals with crucial questions of personal liberty.

The seven students and activists, who had been involved in protests in Delhi in 2020 against the Citizenship (Amendment) Act, 2019 – were arrested and accused of instigating or being involved in the riots that took place after the protests. The veracity of the allegations apart, by the time the case came to the Court, they had spent upwards of five years in jail, without trial (at the time of writing, the trial has yet to commence). Previous judgments of the Court have frequently observed that the right to speedy trial is a constitutionally guaranteed right under Article 21 of the Constitution; only recently, the Court noted that if the state is unable to guarantee a trial within a reasonable period of time, it has no business objecting to a plea for bail. In light of this, one would have thought that half a decade in jail — with the trial yet to commence — is an adequate ground for bail.

Unconvincing reasoning

While the Court found it an adequate ground for five individuals, it denied bail to Umar Khalid and Sharjeel Imam on the basis that these two individuals had been accused of “conceptualising” or orchestrating the riots, and, therefore, stood on a different footing from the other accused. This reasoning is unconvincing. The accusations against the two, at this stage, are nothing more than accusations, and the right not to be incarcerated for an indefinite period without trial is a human right that belongs to every person. It cannot be that an individual has less of a right to a speedy trial just by virtue of what the state has accused them of.

The Court also noted that the delay in the trial so far was not solely due to the prosecution or the court, but had also been at the instance of the accused. This, also, is unconvincing. Accused individuals cannot control the pace of a trial or the proceedings of a courtroom. It is the judge who does so. The judge is empowered to refuse requests for adjournments, if indeed this was what was happening, and proceed with the trial. The Court also did not consider the likelihood of the trial concluding within any meaningful period of time such as, for example, by looking at the total number of witnesses in the case (a number that runs into many hundreds).

This creates a situation where, solely on the basis of the state’s accusations, individuals can be incarcerated for decades before a final verdict in their cases. One hopes that the Court’s observation at the end — namely, that Umar Khalid and Sharjeel Imam can re-apply for bail on grounds of delay after one year — indicates a judicial belief that if five-and-a-half years of imprisonment without trial is not too long, then, at least, six and a half years is. But for that, we will have to wait and see.

The critical issues

The Court’s examination of the merits of the bail cases also raises critical issues. Section 15 of the Unlawful Activities (Prevention) Act (UAPA) defines the offence of terrorism, and after setting out the basic ingredients of the offence (such as the use of violence or weapons), uses the phrase “by any other means”. There is a general principle in criminal law that courts will interpret ambiguous or vague phrases narrowly in order to protect the individual from state excess. However, the Court departs from that principle by giving the phrase “by any other means” a broad interpretation, and seemingly including “chakka jams” within the ambit of the phrase. This broad reading is problematic for many reasons.

First, it vests a vast discretion in the prosecution, that is, the state, in deciding which kinds of protests (including chakka jams) will be dealt with under the UAPA’s stringent provisions, and those under ordinary law. Indeed, the vaguer and more expansive a definition in criminal law, the more unbridled power it vests in the state.

Second, this has a downstream impact on bail. Under Section 43(D)(5) of the UAPA, bail is not to be granted if the court is satisfied — to put it simply — that there is a “prima facie” case against the accused. This provision, which was originally used by the colonial British government to imprison Indian nationalists, is, therefore, closely linked to the substantive provisions of the UAPA, as the question of whether or not there is a “prima facie” case will depend on what exactly the ingredients of the offence are.

By widening the scope of Section 15 of the UAPA, denial of bail becomes far more likely, as it is much easier to establish a “prima facie” case, which is based entirely on the Prosecution’s materials. Once again, there is a long-established principle in criminal law that the more draconian or stringent a law, the more cautiously it should be interpreted, in order to prevent state abuse. The Court’s judgment departs from that principle. One hopes that this interpretation — which is, at the moment, provisional, as it was delivered in a bail case — will be revised by the Court in due course.

Need for scrutiny, not deference

Finally, the expansive nature of Section 15 apart, the Court’s scrutiny of the prosecution’s actual case is highly deferential. The actual evidence against Umar Khalid and Sharjeel Imam — evidence on the record — only demonstrates the organisation and facilitation of protests (and, at its highest, chakka jams) against the Citizenship (Amendment) Act, none of which can be remotely called a “terrorist act”, even under the broadest of definitions. To fill in the gaps, the Prosecution has argued that Umar Khalid and Sharjeel Imam have “managerial responsibility” for the riots, as they were at the head of a “conspiracy” to cause these riots.

The Court notes that such a possibility “cannot be ruled out” and that any deeper scrutiny of the Prosecution’s case would be beyond its remit as it cannot consider possible defences at the stage of bail. However, there is a difference between considering defences and accepting the Prosecution’s inferences that go well beyond the actual record, especially when individual liberty — after five years of incarceration — hangs in the balance.

It is worth remembering that across time, and across space, right from the days of the Dreyfus Affair in 19th century France, the idea of a “conspiracy” has been frequently deployed to compensate for the absence of actual evidence, and to keep people in jail endlessly. The evidence of history should inform the present: allegations of conspiracy, without evidence, deserve searching scrutiny, not deference. At the very least, the absence of direct evidence should not become a reason for an endless imprisonment without trial, and a blurring of the right to protest with acts of violence.

In this context, the continued imprisonment of Umar Khalid and Sharjeel Imam is an injustice; it is an injustice that, one hopes, is remedied sooner rather than later.

Gautam Bhatia is a Delhi-based lawyer

Published – January 15, 2026 12:16 am IST