Umar Khalid: Now 4 years in jail, with no bail and no trial yet

As of 13 September 2024, Umar Khalid has been imprisoned for four years in connection with the Delhi riots conspiracy case under the UAPA — the Unlawful Activities (Prevention) Act. The former Jawaharlal Nehru University (JNU) student leader has been detained since 13 September 2020.  

Khalid’s bail appeal is currently before the Delhi High Court, following the trial court’s second denial of bail. The High Court is scheduled to review his petition on 7 October, while the trial court will hear arguments on 20 September regarding the framing of charges and whether the case should proceed to trial. 

The appeal comes after a Supreme Court ruling on 13 August 2024 that reinforced the principle that “bail is the rule, jail is the exception”, even for UAPA cases.

The Court emphasized that denying bail in deserving cases violates fundamental rights while ruling on the release of Jalaluddin Khan, who faced UAPA charges for renting out the upper floor of his house to alleged members of the Popular Front of India (PFI), a banned organisation. 

The Supreme Court bench of Justices Abhay S. Oka and Augustine George Masih stressed that courts must grant bail when justified, even under stringent statutes, provided the conditions for bail are met. This recent stance represents a shift towards ensuring that bail is granted in cases where fundamental rights are at stake. 

Senior advocate Kapil Sibal criticises the continued denial of bail for Umar Khalid, highlighting the injustice of his prolonged detention in the absence of substantive evidence. Sibal has said, “It is unfortunate that a person with no active role in any activity is languishing in jail for four years. The only alleged offence was a speech made away from Delhi, considered conspiratorial in nature. It is shocking that Umar Khalid and others are still imprisoned. I hope the court will remedy this situation.” 

Khalid was arrested on 13 September 2020 under the UAPA for his alleged role as a "key conspirator" in the February 2020 Delhi riots. His first bail petition was denied in March 2022, and a subsequent special leave petition to the Supreme Court was not heard. 

The Delhi Police FIR against Khalid includes charges under sections 13, 16, 17 and 18 of the UAPA, sections 25 and 27 of the Arms Act and sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984. 

On 28 May 2024, additional sessions judge Sameet Bajpai of the Karkardooma Court denied Khalid’s second bail plea.

In his second appeal, Khalid argued for bail based on his extended incarceration (over three years), the absence of a prima facie case and the fact that others with more severe allegations have been granted bail.

His lawyers withdrew a previous Supreme Court petition in February 2024, citing a "change in circumstances" after the petition had been adjourned 12 times since May 2023.

In February 2024, the Supreme Court in the Gurvinder Singh vs State of Punjab, a bench of justices M.M. Sundresh and Arvind Kumar stated that in UAPA cases, “jail is the rule and bail is the exception”.

This statement though has been said to not apply any more in two later judgements: Shoma Kanti Sen vs State of Maharashtra in April 2024, where the Supreme Court granted bail to former Nagpur University professor Shoma Sen in connection with the Bhima Koregaon case under the UAPA and Sheikh Javed Iqbal vs State of Uttar Pradesh in July 2024, where the accused had been in custody for nine years and trial had been pending.  

Several other prior rulings, including Thwaha Fasal vs Union of India (2021) and Vernon Gonsalves vs state of Maharashtra (2023), emphasised that courts should conduct a preliminary assessment of evidence when considering bail. These decisions aimed to balance individual liberty with national security concerns. 

Additionally, a three-judge bench in Union of India vs K.A. Najeeb (2021) granted bail to a UAPA accused who had been detained for an extended period, stressing that restrictive bail conditions must be balanced with the right to a speedy trial.

Similarly, the Bombay High Court’s 2022 acquittal of former Delhi University professor G.N. Saibaba and others, accused of Maoist links, declared their prosecution under UAPA as “bad in law and invalid”, affirming that national security concerns should not undermine due process. 

Senior advocate Rebecca John highlights the need to remember all those who remain imprisoned for long periods without substantial support. “Everyone who has been incarcerated must be given bail because the allegations don’t stand the test of evidentiary scrutiny,” she argues. 

Khalid, Sharjeel Imam and others have been booked under UAPA and various provisions of the Indian Penal Code for allegedly masterminding the February 2020 riots, which resulted in 53 deaths and over 700 injuries.

The list of 'suspects' includes several others, such as Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha, former AAP councillor Tahir Hussain, Khalid Saifi, ex-Congress councillor Ishrat Jahan, Safoora Zargar, Meeran Haider, Gulfisha Fatima, Shifa ur-Rehman, Shadab Ahmed, Tasleem Ahmed, Salim Malik, Mohd Saleem Khan, Athar Khan and Faizal Khan. While Zargar, Jahan, Tanha, Narwal and Kalita have been granted bail, the remaining accused have been in custody for over three years. 

John notes that the Supreme Court has recently criticised the prolonged detention of individuals when there is no immediate hope of their cases being heard.

She cites the cases of AAP leader Manish Sisodia, BRS' K. Kavitha, AAP's Vinod Nair and, the latest as of today, Delhi chief minister Arvind Kejriwal. She points out that while the PMLA (Prevention of Money Laundering Act, 2002) has stricter bail provisions requiring a higher threshold for release compared to the UAPA, activists booked under the latter continue to languish in jail in many cases.

Sibal adds that he is pleased with the court’s bail decision for Kejriwal and remarked on the critical comments made by a judge about the CBI’s conduct.

“It is unfortunate that people like Sisodia, Satyender Jain and Arvind Kejriwal were kept in jail for so long without justification. There is something to look forward to in the times to come, for the courts to take a position that people just cannot be kept in jail for as long as the executive wants,” concludes Sibal.