Umar Khalid’s legal woes put spotlight on stringency of UAPA
Khalid’s denial of bail underscores harsh realities faced by the UAPA accused, triggering a debate on balance between national security and individual liberty
Former Jawaharlal Nehru University (JNU) scholar Umar Khalid was denied bail for the second time by a Delhi trial court on Tuesday. Khalid, who has been in custody since September 2020, is facing charges under the stringent Unlawful Activities (Prevention) Act or UAPA, in connection with the northeast Delhi riots of February 2020, which claimed 53 lives and left hundreds injured. The February 2020 riots in the Capital occurred amid a months-long protests against a contentious citizenship law.
Khalid was arrested and charged under the anti-terror law for being a part of a broader plot responsible for the riots. He has denied the charges. His first bail plea was rejected by the Delhi’s Karkardooma court in March 2022, which was affirmed by the Delhi high court in October 2022. Khalid then petitioned the highest court in April of last year.
However, citing a “change in circumstances”, Khalid on February 14 withdrew his bail plea from the Supreme Court, even as his legal team said that he would rather try his luck before the trial court. The withdrawal of the plea followed 14 adjournments of bail hearings in the top court. The police seeking an extension to file their response, a judge’s recusal from the case, Khalid’s legal team asking for adjournments, the case being scheduled for specific days, and lack of time were some of the reasons for the multiple postponements.
Khalid’s continued denial of bail underscores the harsh realities faced by those accused under UAPA, triggering a debate on the balance between national security and individual liberty, coupled with the need for judicial and legislative reforms to protect the rights of those caught in the web of anti-terror laws in the face of delays in concluding such trials.
The case against Khalid
Khalid, 36, is accused of being one of the key conspirators in the Delhi riots. The prosecution alleges that he, along with other activists, planned and instigated the violence as part of a larger conspiracy to destabilise the government. The charges against him include promoting enmity between different groups and committing acts prejudicial to the maintenance of harmony, which fall under UAPA and other sections of the Indian Penal Code (IPC).
According to the charge sheet, Khalid was involved in hatching a “larger conspiracy” of terrorism, criminal conspiracy and engaging in unlawful activities, along with charges of rioting. The police have described him as a “remote supervisor” and a “mastermind” behind the riots, based on what they claimed were statements from certain witnesses. Khalid’s alleged participation in WhatsApp groups, calls he received from other accused when the riots started, and his attendance at multiple demonstrations and provocative speeches to overthrow the government have been cited as other evidence.
However, Kahlid has consistently denied making any provocative speeches or instigating violence.
There are 18 individuals, including Khalid, Tahir Hussain and Sharjeel Imam, named as accused in the case. Of these, six — Saleem Khan, Ishrat Jahan, Safoora Zargar, Asif Iqbal Tanha, Natasha Narwal, and Devangana Kalita — are currently out on bail.
Zargar was released on humanitarian grounds in June 2020 due to her pregnancy, with no objections raised by the police. Narwal, Kalita and Tanha were granted bail in June 2021. The Delhi high court ruled that the accusations against them did not prima facie constitute an offence under UAPA, as their participation in protests did not include specific allegations of inciting violence. In Kalita’s case, the court stated that the allegations did not demonstrate her involvement in terrorist or conspiratorial acts. Similarly, Tanha’s bail was granted because the court found the allegations against him unconvincing.
Saleem Khan received bail in October 2020 after the high court concluded there was no substantial evidence against him, such as CCTV footage or incriminating chats. On similar grounds, Jahan was also granted bail by Delhi’s Karkardooma court in March 2022.
The trial in the case is yet to begin amid a standoff between the prosecution and the defence regarding clarity on the overall status and completion of the police’s investigation in the case. The accused have demanded they be told about the final status of investigation before proceeding with the arguments on charge.
Denial of Khalid’s bail and legal context
Khalid first sought regular bail from Delhi’s Karkardooma court on September 6, 2021, claiming that the prosecution’s case was false, based on inadmissible disclosures and inconsistent witness statements. Khalid argued that exercising his constitutional right to free speech and protesting against the Citizenship (Amendment) Act, or CAA, should not be deemed a terrorist act.
However, the trial court rejected his bail on March 24, 2022, finding reasonable grounds to believe the accusations against Khalid were prima facie true, thus invoking Section 43D (5) of UAPA, which restricts bail.
Khalid then appealed to the Delhi high court on April 22, 2022, arguing the lack of physical evidence linking him to the violence, no incriminating recoveries, and no attributable disclosure statements. The high court dismissed his appeal in October 2022, noting his consistent involvement throughout the riots, his membership in the Delhi Protest Support Group (DPSG), and call data records showing frequent communication with co-accused during the riots.
Khalid’s second bail plea filed within 15 days of the withdrawal of his plea from the Supreme Court highlighted his prolonged custody of over three-and-a-half years and his arbitrary arrest six months after the FIR despite cooperating with the investigation. He argued that the charge sheet and evidence did not meet the criteria for offences under UAPA and sought bail on grounds of parity, noting that several co-accused had been granted bail.
But the court dismissed this plea on Tuesday, stating that the prosecution was not responsible for any delays, and underscoring no significant change in circumstances since the first bail rejection. The court reiterated the high court’s detailed analysis of Khalid’s role in light of Section 43D (5) of UAPA, adding that after the first round of rejection of his bail plea and withdrawal of his appeal from the Supreme Court, the trial court’s initial decision had attained finality.
A high threshold for bail under Section 43D (5) of UAPA
The court’s decision to deny bail to Khalid highlights the stringent nature of UAPA, particularly Section 43D (5). This provision stipulates that an accused person shall not be granted bail if the court, after perusing the case diary or the charge sheet made under Section 173 of the Code of Criminal Procedure (CrPC), is of the opinion that there are reasonable grounds for believing that the accusations against such person are prima facie true.
Section 43D (5) -- introduced by the Congress-led UPA government through an amendment in the statute in 2008 -- sets a high bar for granting bail, making it challenging for the accused to secure release. The provision effectively shifts the burden onto the accused to disprove the prosecution’s prima facie case. This contrasts sharply with regular bail provisions under the CrPC, where the accused is presumed innocent until proven guilty, and the burden is on the prosecution to establish guilt beyond a reasonable doubt.
Section 43D(5) of the UAPA has sparked significant criticism and raised legitimate concerns among legal experts and human rights advocates over pre-trial and pre-conviction detention of accused, opening the door to potential abuse of power.
The Supreme Court has set several precedents regarding bail under UAPA. In the case of NIA vs Zahoor Ahmad Shah Watali (2019), the Supreme Court emphasised that the court should not analyse the evidence in detail at the bail stage and should grant bail only if there are substantial grounds to believe that the accused is not guilty. This principle makes it exceedingly difficult for accused persons to obtain bail under UAPA.
The latest judgment in point is Gurwinder Singh vs State of Punjab, delivered by the top court in February 2024. Bail in terror cases must be rejected as a “rule” when courts have reasonable grounds to believe that the charges are prima facie true, the court held in a judgment that prescribes a “twin prong” test, severely narrowing the scope of bail under UAPA. The verdict underlined that the conventional idea in bail jurisprudence that the discretion of courts must tilt in favour of the oft-quoted phrase — “bail is the rule, jail is the exception” — does not find any place while dealing with bail applications under UAPA. In such instances, the judgment noted, courts are merely examining if there is justification to reject bail. “Mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail,” it further held.
Another notable instance is the case of Sudha Bharadwaj vs State of Maharashtra (2021), where the activist was denied bail multiple times despite serious health issues and prolonged incarceration in connection with the Bhima-Koregaon case. It was only after considerable legal struggle that she was finally granted bail by the Bombay high court in December 2021 on account of the legal lacuna in the investigating agency seeking time beyond 90 days in filing a charge sheet in the case. This case further highlights the arduous process for UAPA detainees.
A more liberal approach
In contrast, the Supreme Court’s decision in Raneef vs State of Kerala (2011) showed a more liberal approach, where bail was granted under UAPA by evaluating the evidence and the personal liberty of the accused. In deciding bail applications, the court held in this case, an important factor which should be considered by the court is the delay in concluding the trial.
Similarly, the apex court’s judgment in Union of India vs KA Najeeb in 2021 rendered an interpretation of UAPA titled in the favour of the accused, albeit only for those who have spent considerable amount of time in jail without trial or pending trial. “Whereas at commencement of proceedings, courts are expected to appreciate the legislative policy against grant of bail, but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence,” held the court. It emphasised that such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
The Bombay high court judgment acquitting former Delhi University (DU) professor GN Saibaba and five others in March 2024 for suspected Maoist links and “waging war against India” also came as a nuanced judicial precedent, stressing that individuals cannot not be prosecuted for their intellectual pursuits -- not unless there is concrete evidence linking them to illicit activities. This judgment delved into the significance of adhering to procedural norms in terrorism cases and its implications on human rights and legal integrity while trashing the prosecution’s case against Saibaba and five others over incurable procedural violations. Almost a week later, the Supreme Court rejected the Maharashtra government’s plea for staying the high court verdict that cleared Saibaba and others of charges under UAPA and IPC, saying the acquittal order is “well-reasoned” and that the “presumption of innocence gets fortified” after an exoneration.
While some of the recent judgments demonstrate the judiciary’s willingness to scrutinise the application of UAPA strictly, the trial court’s decision to deny bail to Khalid reflects the stringent judicial interpretation of Section 43D (5) of the UAPA. As his case progresses, it will continue to be a focal point for discussions on the evolving legal landscape and ongoing debates around the interpretation of UAPA provisions.
