Does perceived centrality of an accused’s role as “ideological driver of the alleged conspiracy” justify his prolonged custody without adjudication?

The long shadow of the anti-CAA protests and the subsequent riots in northeast Delhi in 2020 continues to loom large over the bail pleas of Umar Khalid and Sharjeel Islam. Charged under the UAPA for violence and rioting in the national capital, the disproportionate and prolonged spell of suspicion on their alleged involvement in the riots, which, according to fact-finding reports by statutory commissions, civil society organisations, and independent journalists, were not spontaneous but organised to crush the anti-CAA agitation, and the denial of bail to Umar and Sharjeel by the Supreme Court (SC) last week raise serious questions about liberty, delivery of justice, and pre-trial detention. 

The duo has been accused of conspiring to destabilise the government through violence and rioting. However, the narrative and allegations of their involvement in a “larger conspiracy” against the Indian state ignore one basic fact: in the criminal justice system, presumption of guilt contrasts with the fundamental human rights principle of the presumption of innocence until the prosecution proves it beyond a reasonable doubt. The binary view of the Delhi riots—one of the Delhi police and the other of civil society organisations, legal experts, and intellectuals—makes it vital to understand why and how the Delhi riots took place and who was behind the targeting of homes, shops, business establishments, and places of worship of a particular community. 

This requires an impartial and complete investigation, followed by a charge sheet and judicial trial, conviction, and punishment for the guilty. Instead, what we have had in the last six years is the long incarceration of young and highly educated people like Umar and Sharjeel on terror charges that seems like an attempt to fix responsibility for the riots that followed months of protests over the controversial Citizenship Amendment Act, 2019, and the proposed National Register of Citizens. The anti-CAA protests were widespread and multi-site. But Delhi’s Shaheen Bagh was the epicentre of the agitation that stood like an uncomfortable site for the proponents of the CAA and NRC. 

The protests that spiralled into violence and rioting were preceded by a series of hate speeches and provocative statements by leaders and supporters of the contentious citizenship law. Accounts from the ground found that the communal distrust was fomented and the rabble rousing led to horrific violence. These facts seem to have been ignored by the police while filing charges against the accused of conspiracy and terrorism to weaken India’s territorial unity and integrity. The long incarceration of Umar and Sharjeel on terror charges, making the process a punishment while disregarding the narrative and climate of division and polarisation that was reportedly responsible for fomenting communal violence, raises questions over the police’s effort to fix accountability for the riots on the accused. 

The anti-CAA protests were led by women from the Muslim community. But there was wider support for and solidarity with the agitation from several sections of society, making it a secular movement against a discriminatory law which offers a fast-tracked path to Indian citizenship to members of persecuted minority communities from Afghanistan, Pakistan, and Bangladesh. The agitation symbolised a collective dissent which was too broad to have been hijacked by a few educated young men and women with the intent of provoking violence and engineering riots. A peaceful protest is a democratic right, not a crime. A violent protest or a riot is a crime. But the question is whether every riot is a UAPA crime. 

If one understands this distinction, then it becomes easier to comprehend why Umar and Sharjeel have been denied bail six times, starting with the trial court to the High Court and now the Supreme Court. It is pertinent to keep in mind the background of the case and the prosecution’s narrative chronologically. It starts, according to some legal experts, with the 2016 JNU controversy and moves to the anti-CAA protests and ends with the communal violence. According to the prosecution, protests, speeches, and political messaging created the conditions that ultimately culminated in violence. Based on this narrative, several individuals were arrested under the UAPA, not for their direct participation in violence but on the theory of conspiracy. 

However, during the bail decision at the trial and High Court stages, in some cases the court found the prosecution’s evidential material too vague, inferential, or thin to establish even a prima facie case of terrorist activity and granted bail. In the case of others, bail was refused on the reasoning that the allegations disclosed a deeper conspiratorial role. 

The SC bench held that while prolonged delay is a serious concern, in the case of Umar and Sharjeel, “it has not reached a stage where detention has become unconstitutional.” This distinction and exception were made by the court by accepting the prosecution’s argument that the duo played a “central and formative” role, while five others had “merely conspiratorial association” and were given bail. 

Constitutionally, this is a paradox to the role of the courts as sentinels of liberty when the seriousness of allegations alone sustains incarceration for years without a trial in sight. By accepting the prosecution’s reasoning that both accused were part of the “larger conspiracy” and provided “intellectual architecture” to violence and riots, the court created a “hierarchy of participation” distinction, a new ground for denial of bail to the accused, which makes it even more difficult to otain bail under the UAPA. Equally surprising is the court’s expansion of the definition of terrorism—it said Section 15 of the UAPA Act cannot be “interpreted narrowly to include only acts of blatant violence” but would also include acts that “disrupt services and threaten the economy”. This judicial wisdom goes beyond the text and normal understanding of the law. 

Past SC judgements have explicitly held that on the ground of delay in trial, a constitutional court is not denuded of its powers to grant bail under the UAPA, notwithstanding the rigours of the statute. Ironically, a day after denying bail to Umar and Sharjeel, in another case, another bench of the SC granted bail to a PMLA accused, citing prolonged pre-trial detention. This dichotomy is not only disconcerting but also raises a question—does the perceived centrality of the accused’s role as “ideological drivers of the alleged conspiracy” justify their prolonged incarceration without adjudication?