After 3 years, 2 months, 11 days, why Umar Khalid still awaits bail

Would incarcerated activist and scholar Umar Khalid get his first substantive bail hearing before the Supreme Court during 2023 on Wednesday 29 November? Advance speculation was rife that the Supreme Court bench would either adjourn the hearing again, or reject the bail plea.

However, the sense of suspense and anticipation turned into anti-climax on Wednesday as the bail hearing was adjourned first to 6 December and thereafter to 10 January 2024, for the curious reason of non-availability of both counsel, ASV Raju representing the National Investigation Agency (NIA) and Kapil Sibal representing Umar Khalid.

Since the Supreme Court issued notice on his petition in May this year, the hearing of Khalid's bail plea has been adjourned eight times, reported Live Law: "once on July 12 after the Delhi police sought more time to file a counter-affidavit, on July 24 after a letter of adjournment was circulated by Khalid's counsel, on August 9 after Justice PK Mishra recused himself, on August 18, when the matter was listed on a miscellaneous day, on September 5 at the behest of the petitioner, on September 12 after the court granted leave, on October 12 owing to a paucity of time and again on October 31".

The bench of justices Bela Trivedi, 16th in seniority, and Satish Chandra Mishra, 32nd in seniority in the court, was constituted after the previous bench hearing the petition comprising justices Sanjay Krishna Kaul and Aniruddha Bose 'lapsed', with Kaul due to retire on 25 December.

The adjournment on Wednesday triggered a fresh round of speculation on whether Khalid’s counsel Kapil Sibal could be reluctant to argue the matter before justice Trivedi. At a previous hearing on the Prevention of Money Laundering Act (PMLA), Trivedi had asked the senior counsel, who was arguing against the draconian provisions of the act, whether he was in the Opposition or with the ruling party in 2002 when the act was first passed. Sibal had objected to the question, which he deemed unfair.

Khalid has been in prison for the past three years, or to be precise, 3 years, 2 months, and 11 days, point out activists, who believe he is not only innocent but has been framed on evidence that would appear ‘frivolous’ to most people.

In October 2022, Delhi High Court had upheld the order of a trial court denying Khalid bail. A division bench of justices Siddharth Mridul and Rajnish Bhatnagar had taken a serious view of Khalid using phrases like inquilabli salaam (revolutionary salute) and krantikari istiqbal (revolutionary welcome) in a speech made in Amaravati in February 2020, holding it to be an incitement to violence.

The bench practically held him guilty without any trial as the judges observed that ‘revolution’ was not always bloodless. They also objected to the use of the word jumla (empty promise) by Khalid in the speech, while referring to Prime Minister Narendra Modi.

The high court had rejected the bail plea, repeating Delhi Police's charge that Khalid was in constant touch with other co-accused, and his actions (speeches, protests against CAA-NRC and alleged meetings with his co-accused) qualified as "terrorist acts".

Khalid, arrested by Delhi Police in September 2020 in connection with the Delhi riots, had sought bail on grounds that he neither had any criminal role in the violence, nor any "conspiratorial connect" with any other accused in the case. He was not even present in Delhi when the riots began in February 2020.

Delhi Police had opposed Khalid's bail plea in the high court, saying the speech delivered by him was "very calculated", and he brought up contentious issues like Babri Masjid, triple talaq, Kashmir, the alleged suppression of Muslims and the CAA-NRC.

Khalid, who has been behind bars since then in an Unlawful Activities (Prevention) Act (UAPA) case for an alleged larger conspiracy behind the 2020 Delhi riots, then approached the Supreme Court challenging Delhi High Court's judgment denying him bail.

The adjournment has also revived the debate on the role of the chief justice of India as the master of the roster. Could he have constituted a different bench for the hearing, asked activists eagerly waiting for Khalid's release on bail. What about the chief justice’s frequent homilies on individual liberty and the ‘bail, not jail’ principle, they wondered.