Sanjay Hegde exclusive | Indefinite prison for Umar Khalid, Sharjeel Imam?

Activists Umar Khalid and Sharjeel Imam, arrested in 2020 in connection with the Delhi riots case, remain in Tihar Jail without trial or bail. As the Delhi High Court denied them bail yet again on Tuesday (September 2), The Federal spoke to Supreme Court Senior Advocate Sanjay Hegde in a Capital Beat episode about the prolonged incarceration. This discussion delves into the legal implications and broader concerns surrounding their detention under the stringent UAPA.

What are your initial thoughts on the repeated denial of bail to Umar Khalid and Sharjeel Imam?

It's shocking. There was a feeling that Umar Khalid's matter was withdrawn from the Supreme Court because a particular judge was unlikely to grant bail. But to see an order so heavily prosecution-oriented, signed by someone presumably steeped in professional values, is truly surprising. It brings to mind an old video of Soli Sorabjee discussing the ADM Jabalpur judgment during the Emergency, where he expressed devastation when judges he trusted sided with the executive. It seems sometimes lawyers, upon becoming judges, can become even more executive-minded than the executive itself.

The court observed that the trial will progress "naturally", suggesting a hurried trial would be detrimental to both sides. What does this mean?

When judges decline bail, they often suggest speeding up the trial. However, they typically don't imply taking a leisurely pace. Judges are meant to be guardians of liberty. If they are casual about the liberty of anyone, even someone deemed despicable, it sets a precedent for being equally casual about everyone's liberty.

Also read: Delhi HC denies bail to Umar Khalid, Sharjeel Imam, and others in 2020 riots case

The court also noted that the trial is at the stage of hearing arguments on the framing of charges, indicating progress. Is this a reasonable argument after five years?

Well, that's a normal stage of trials. After the investigation, police file a charge sheet. Based on that and witness examinations, the court determines if there's enough material for a trial. At this stage, individuals can argue for discharge, stating there's no evidence against them. Once charges are framed, the accused pleads guilty or not guilty, and then the trial proceeds. Given the 3,000-page charge sheet and over 400 witnesses, this trial will take an incredibly long time, especially with perhaps 40 to 50 accused.

The alleged conspiracy involves organizing CAA protests to embarrass the country during a presidential visit. Does this hold up?

The CAA protests began around November-December 2019. The Delhi elections were in February 2020. I don't recall any mention of a presidential visit when the protests started. Such visits are negotiated much in advance. It's difficult to see random activists planning a "huge deep conspiracy" based on this premise. These are all matters for trial, but we haven't even reached the stage of framing charges. The question is, will they be kept indefinitely in prison?

Also read: Modi govt using laws like UAPA to stifle dissent: Congress

Does their alleged role of delivering inflammatory speeches and creating WhatsApp groups to instigate mass mobilization, including disruptions, warrant a UAPA case?

That's precisely the problem with the UAPA, similar to TADA and POTA. Its provisions can be applied without sufficient safeguards. If the police decide to frame a UAPA case, they can construct elaborate, almost "fairy tale" logic. If courts don't critically examine this prima facie, then our fundamental right to assemble peaceably is severely undermined. If courts simply say they cannot conduct a "mini-trial" at the bail stage, as some Supreme Court judgments suggest, then we are in deep trouble.

Are courts taking a selective approach, especially compared to granting parole to others?

In defence of the courts, parole is an executive decision, not a judicial one. It's decided by the government for reasons like overcrowded jails or personal events. However, the same executive that vigorously argues against bail in court for some individuals is seen distributing parole to its favoured ones.

What do you anticipate for the pace of the trial for Umar Khalid or Sharjeel Imam?

It's easy to be pessimistic, but hope is essential. However, just as people get the rulers they deserve, they also get the courts they deserve. Judges, who are ultimately citizens themselves with an expiry date on their tenure, should be mindful that they will be judged by history. History's judgment can be harsh. I can only hope for judges who are fair-minded. As Justice Cardozo implied, even if all allegations are believed, five years without trial is grossly disproportionate.

Also read: Prisoner No. 626710 is Present review: The story of Umar Khalid’s incarceration

The basic rule is "bail is the rule, jail is the exception". Why is this often forgotten in cases like these, especially when minorities or political prisoners are involved?

This happens because of specific legal provisions within acts like UAPA, PMLA, and drug cases. These laws set a higher standard for bail, requiring the judge to be prima facie satisfied that no case exists against the accused, and they won't re-offend. This "prima facie satisfaction" standard, particularly after the Supreme Court's Vattali judgment, makes it very difficult to get bail. If we don't insist on the same rights across the country, what happens in one region can affect all citizens when police or other agencies use these stringent laws.

Given the chronology of rejections and adjournments, does it suggest deliberate delay?

If bail is denied by the Supreme Court, doors can be shut for a very long time. Lawyers operating at that level must operate with a "first, do no harm" principle. The sequence of adjournments, including some taken to hope the system would "right itself," and the eventual withdrawal of the Supreme Court petition, shows the challenges. Once a petition is withdrawn, it's rare for trial courts to grant bail, especially under UAPA's strict conditions. High courts and the Supreme Court are constitutional courts with fixed tenures precisely so they can stand up to an unreasonable executive. When they don't, it suggests a profound injustice.

Also read: 'Bail is rule' for offences even under special statutes like UAPA: SC

Is justice itself on trial in such cases?

As GP Tareja once said, in the courtroom, both sides know the truth; it's only the judge who is on trial. Judges are often as much on trial as those they judge. We in the profession believe our judges perform a sacred duty: to be fair and to stand up for citizens' rights. When they don't stand up for any particular class of citizen, many will judge them as having been party to injustice.

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