The judgment whereby the Supreme Court denied bail to Umar Khalid and Sharjeel Imam in the 2020 North East Delhi riots case presents several tensions between legal doctrine, constitutional spirit, and practical outcome.
One, for bail under the Unlawful Activities (Prevention) Act’s (UAPA) Section 43D (5), the court must be satisfied, based on the prosecution’s material taken at face value, that the accusations are “prima facie true.” Defence rebuttals are not to be examined at this stage. As a constitutional guarantee, Article 21 of the Constitution guarantees the right to life, personal liberty and a speedy trial.
Two, the Supreme Court has held that treating all accused identically risks transforming pre-trial detention into a punitive mechanism, applied a “hierarchy of culpability,” finding the roles of Umar Khalid and Sharjeel Imam “qualitatively on a different footing” as alleged central planners, while granting bail to five others for “subsidiary” roles. It stated that prolonged incarceration triggers scrutiny, but delay alone is not a “trump card” for bail under the UAPA.
Three, a clear jurisprudential trend recognises that the right to compensation for wrongful incarceration has a solid legal foundation. The Supreme Court is actively examining this right. It has issued notices on petitions by acquitted death-row prisoners seeking compensation and also on a plea to frame a national compensation policy for unjust imprisonment.
Four, recognised harms listed in petitions detail the destruction of life, reputation, family destitution and lasting stigma, all harms that “freedom alone cannot remedy.”
The judgment whereby the apex court denied bail to Khalid and Imam presents several tensions between legal doctrine, constitutional spirit and practical outcome: the top court’s refusal to weigh defense evidence at bail (eg, Khalid’s absence from Delhi, or a 2022 report finding no evidence for terror charges) creates a significant asymmetry, where prima facie material of prosecution suffices to imprison a man, even though it is just allegation.
Prima facie evidence of his non-involvement cannot be brushed aside to his detriment. The accused has borne the weight of stringent allegations for years without a full evidential hearing.
The harmful ‘build-up’ argument
The Supreme Court’s holding that a “terrorist act” includes the “build-up,” like disrupting essential supplies, expands UAPA’s scope. If build up to events should be considered as part of the res gestae to bring home criminality to possibly unconnected acts, that theory should be equally applied across the spectrum to hate speech and build-up, which leads to communal incidents against Muslims and Muslim places of worship.
Given willing judicial reliance on the doctrine of “same transaction” (or res gestae), where the court weaves together disjointed events to establish a singular “conspiratorial build-up,” to maintain the integrity of the rule of law, this logic of “build-up” must be applied with equal vigour across the ideological spectrum, specifically to the systemic hate speech and provocative rallies that precede communal violence and the desecration of Muslim places of worship.
It also must be applied to the bulldozing of buildings, the noteworthy aspect being absence of any credible system of proper compensation to victims of such action on the one hand, and the disincentivising of such minority-hostile State action by punitive recovery of such compensation from the personal assets of the State actors, whether bureaucrats or political office holders, or persons acting under State patronage.
Harms of prolonged detention
Prolonged detention is a de facto punishment, and it is as if aware that there will be no possibility of conviction, terrorism related charges are made to fabricate the prima facie allegation that will ensure denial of bail. What about compensation and personal accountability if future proceedings establish that the incarceration of Khalid, Imam or others was based on false or malicious grounds? Will not a compelling case for the highest compensation and personal accountability be built on constitutional principles?
The Supreme Court is already considering compensation for wrongful imprisonment. The destruction described in those petitions mirrors the potential harms here: lost years, shattered careers, destroyed opportunities, family trauma and deep societal stigma. “Pro rata” compensation must account for quantifiable losses like lost income growing over time, seniority setbacks, legal expenses, educational disruption, adverse impact on health, as well as mental and emotional well-being.
There is also non-quantifiable harm, such as psychological trauma, damage to reputation and the deprivation of familial and social life. The suffering extends to family members, driven in many cases to “abject penury.” Rs 50 lakh spent by a family for defense is not compensated by a like sum paid on acquittal because that sum would, five years later, have dwindled in purchasing power to just Rs 30 lakh. Does all this cross the judicial mind?
If the prima facie allegation carries such high value, must not the compensation at the time of acquittal carry the equivalent harshness of implications for those fabricating charges and framing persons for political reasons?
To truly “balance” the “scales of justice,” the blindfold must be removed. Any remedy must look beyond the State. If charges are fabricated by individuals (investigators or political actors, whether holding office or not, whether as a political party or unregistered cultural organisation, or alleged NGO), holding only the State fiscally liable fails to achieve justice or deter future misuse. This argument is the logical extrapolation of the constitutional tort principle.
If a malicious prosecution violates fundamental rights, the individuals who wilfully engineered it should be held personally accountable. Recovery from personal assets, regardless of the individual’s position, is essential to affirm that constitutional rights are inviolable and that abuse of power has severe personal consequences.
The Supreme Court’s judgment navigates the difficult terrain of the UAPA’s strict bail provisions. However, it leaves unresolved the profound tension between a statute that necessitates lengthy pre-trial detention and the Constitution’s guarantee of a speedy trial and liberty. The developing jurisprudence on compensation for wrongful imprisonment provides a crucial pathway to remedy.
If the charges in this case are ultimately dismantled, awarding the highest pro-rata compensation and pursuing the personal liability of fabricators would be a necessary, though arduous, step to restore the balance of justice and uphold the sanctity of constitutional rights.
The critical aspect is judicial reasoning: the Supreme Court’s interpretation of a “terrorist act” under the UAPA to include the preparatory “build-up” creates a legal principle that, if applied even-handedly, could have significant implications for cases involving hate speech and communal violence.
Law must be applied uniformly
The top court agreed with the prosecution that acts creating a “pervasive fear” or disrupting essential supplies could constitute a terrorist act, and that the “build-up” to the main event (like the February 2020 Delhi violence) is an integral part of the criminal conspiracy. The legal logic used is that planning, mobilisation and inflammatory acts leading to a larger violent incident are not separate, minor offences but are constitutive of the graver offence itself.
Good. This allows for the stringent provisions of the UAPA to be applied not just to the direct perpetrators of violence, but to those whose earlier speeches, organising or instigation allegedly created the conditions for it. Do we ask ourselves why the honourable ladies and gentlemen who spoke rubbish against Islam and Muslims, and still do, have not been proceeded against? Do we ask why they are not in prisons?
If this legal principle is to be applied consistently as a matter of law, and not selectively as a matter of politics, applying it to communal hate speech and violence creates a powerful framework to address orchestrated communal violence. Do we ask ourselves if the State is interested in this aspect?
In many cases of large-scale communal riots or attacks on places of worship, there is a documented pattern of preceding “build-up”: weeks or months of sustained hate speech and public vilification of a community, organised mobilisation and training, circulation of inflammatory literature and targeted disinformation, public calls for economic boycott and social ostracisation…
Are all these not seen even now? Using the Supreme Court’s own reasoning, this “build-up” should be considered an integral part of the eventual communal violence. The hate speeches and mobilisation are not isolated offences under simple sections of the Indian Penal Code (like Section 153A); they are the very foundation of the larger, more serious crime of organised communal violence, which should arguably be prosecuted under stricter laws.
Following the same logic, courts could be more inclined to deny bail to those accused of masterminding the communal “build-up,” given the gravity of the eventual outcome and their alleged central role. It would mandate that investigations treat the violence and the preceding hate campaign as a single, integrated criminal enterprise.
It was, I think, in 2008 that, as a member of a team advising an Expert Committee which in turn was advising the Parliamentary Steering Committee on the Communal Violence Bill, all these aspects had been suggested by me in writing. Since numerous other powerful suggestions were made, could it be that that was why the Bill did not become law?
The application of this principle is entirely dependent on the police and prosecution, and those in the political will. In cases of hate speech and build-up against Muslims, do the police diligently collect evidence linking speech to violence and frame charges accordingly? Do not political and institutional biases derail this process at the outset?
Different courts hearing communal violence cases may distinguish the facts or narrowly interpret statutes, avoiding the application of the “build-up” principle from the UAPA context.
There is in Teesta Setalvad v State of Gujarat, for example, considerable judicial commentary on the asymmetric application of harsh laws like the UAPA, suggesting they are used more readily in certain contexts (like dissent or “urban Naxal” cases) than in others (like communal violence).
The Supreme Court has articulated a legal principle that criminalises what can be called “the architecture of violence.” For this principle to retain its legitimacy as law and not become a mere tool, it must be applied with strict impartiality. If the “build-up” to a Shaheen Bagh protest can be considered part of a “terrorist act,” then, by the same legal standard, the meticulously documented “build-up” of hate speech, boycotts and mobilisation preceding a communal riot must also be investigated and prosecuted as part of a larger, grave conspiracy, and bail denied to all accused.
There again, oversight is needed to ensure first information reports (FIR) are not diluted, and names of actors go missing based on influence. The failure to do so would expose a critical asymmetry in the application of India’s most stringent laws, raising profound
questions about equality before the law (Article 14 of the Constitution) and the State’s duty to protect all citizens equally.
Failing that, Chief Justice Surya Kant’s statement of bending the arc of justice towards the most vulnerable remains constitutional rhetoric rather than judicial practice. For communities that repeatedly appear before constitutional courts not as occasional litigants but as habitual victims of state action or social violence, legitimacy does not flow from speeches: it flows from consistent protection of the law. The law draws its authority from the people it protects, but it loses moral authority when those most in need experience it as distant, delayed or indifferent.
To “reshape” or “bend” the law, as the Chief Justice urges young graduates to do, is not merely an exhortation to idealism – it is an implicit acknowledgement that the existing legal arc has not bent sufficiently toward Dalits, SC/STs and Muslims, despite hundreds of reported judgments invoking their suffering.
The constitutional promise is not honoured when vulnerability is acknowledged in theory but neutralised in doctrine and implementation. It is honoured when courts consciously interrogate power, treat equality as a lived reality rather than abstract symmetry and ensure that the most frequent petitioners for justice are not the least likely to receive it.
A legal blindfold is to prevent injustice, remove inequality barriers between the rich and the poor, Hindu-Muslim, politician-student. It must enlighten, not blindside, the judiciary.
Jai Hind.
