Supreme Court’s bail denial a blow to democracy, liberties, rights

The Supreme Court’s denial of bail to Umar Khalid and Sharjeel Imam exposes the judiciary’s retreat from protecting dissent

The Supreme Court of India’s  denial of bail, on January 5, to Umar Khalid and Sharjeel Imam raises worrying questions about the role of the higher judiciary in protecting the right to dissent in an India which is being reduced to a police state by an authoritarian regime.

While hearing the bail pleas in the Delhi riots case, a bench gave bail to five accused persons, denying the same relief to the two men, in the exercise of its discretionary powers, following a line of reasoning that sounds specious and disregards the fundamental rights of citizens and civil liberties.

Before we get to the specifics, it must be noted, as  several constitutional historians have pointed out, that since Independence, the higher judiciary — the top court and the high courts — has consistently favoured ‘reasons of state’ over citizens’ rights and liberties.

This has been most apparent historically when courts have dealt with litigation over draconian preventive and anti-terror laws that create a permanent ‘state of exception’ in which rights and liberties remain suspended, or are severely attenuated.

The point is that there have been only two periods in the history of independent India which rights and liberties have been severely under threat. One relatively short — the period of the Emergency lasting under two years — and the current one of an undeclared emergency, well into its second decade.

This makes it critical for the judiciary to stand up and be counted, which it has failed abysmally to do.

Let’s look at the stated reasons for denying Khalid and Imam bail, founded on some fine distinctions. First, the court distinguished between the two and the other accused on the grounds that they were the masterminds who orchestrated whatever happened, of which more later.

It’s obviously good that five people were given bail, but the distinction is false and serves the interests of an authoritarian regime, which is more vengeful than paranoid.

Nevertheless, the other distinction is more troubling. Which is the argument that on a hierarchy of offences, Imam and Khalid occupy such an exalted position that the basis of bail, which should be granted in view of their already protracted period of incarceration, is cancelled out.

The court both said, in effect, that the length of incarceration was not so lengthy as to be constitutionally impermissible and that liberty cannot be viewed in isolation, i.e., the gravity of the offence justifies the long incarceration.

Which brings us to the court’s expansive reading of acts of terror, in effect giving ‘reasons of state’, in the form of the draconian provisions of the Unlawful Activities (Prevention) Act, a huge judicial pass. Specifically, the court said that actions not involving the use of conventional weapons could constitute a terrorist act within the definition encompassed by the phrase ‘by any other means’ used in UAPA’s Section 15.

The bench, thus, rejected the defence plea that delivering inflammatory speeches and holding protests at  best constituted a problem of public order.

Is the job of the judiciary to regurgitate the most extreme positions of a gimcrack government? If the court’s particular interpretation of exceptional culpability holds good, any group of people disrupting the life of a city could be jailed for years under draconian provisions of numerous laws.

Remember, it was the same court that sternly enjoined upon the West Bengal government not to take coercive steps against protesters who were holding the city to ransom in the wake of the barbaric rape and murder at RG Kar Medical College and Hospital, with blockades beginning August 2024 and lasting months. They got it right then, of course.

With the courts signing off on the government’s most rebarbative proclivities, perhaps we should also examine the circumstances of the Delhi riots of early 2020.

It’s established that it was initially stoked by Sangh parivar activists as punishment for the protests against the Citizenship (Amendment) Act (CAA) of 2019, and that the Muslim communities of northeast Delhi suffered by far the greatest losses both in terms of lives and property.

The Delhi Police, which now functions like a ruling-party militia, ignored the original provocateurs, among them the egregious Kapil Mishra, since then rewarded with a ministry in the Delhi dispensation, to round up those protesting against the CAA.

We’ve seen courts order proper investigations into far less consequential crimes, but the Delhi Police’s stitch-up got a pass. Now the victims of a witch-hunt, stigmatised as terrorists by an anti-national regime, have been left to the mercy of those determined to stamp out dissent and debate under their jackboots.

The judiciary is making fine distinctions between terrorism and public order, but is sightless when confronted in large dimensions by the systemic and systematic violation of liberties and rights.

Suhit K Sen is author of ‘The Paradox of Populism: The Indira Gandhi Years, 1966-1977’.

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.)