The Umar Khalid case: A retreat from Rule of Law to Rule of Instinct?

In 1964, the United States Supreme Court was asked to define obscenity. The case, Jacobellis v. Ohio, arose from the screening of The Lovers, a French film by Louis Malle that offended local sensibilities in Ohio. The judges struggled. Definitions collapsed under scrutiny. Finally, Justice Potter Stewart abandoned the attempt. Hard-core pornography, he said, might be impossible to define, “but I know it when I see it.”

The line became famous because it was honest. It admitted that the law had reached the edge of language and fallen back on instinct. It was also deeply unsettling. It replaced a legal standard with a judicial feeling. A more unsettling film than The Lovers was probably Jean Renoir’s The River, shot in India, filled with adolescent desire, glances that linger too long, and a quiet eroticism that never quite declares itself. Nothing explicit happens. Yet something is undeniably happening. The discomfort lies not in what is shown, but in what is felt. Which is why comedians joke: obscenity is whatever arouses a judge.

We laugh because we recognise the danger. What disturbs or excites is personal. One judge’s art is another judge’s offence. Stewart’s formulation worked not because it was principled, but because principle had failed. What is worrying today is the sense that Indian bail jurisprudence is drifting into the same territory. Bail is increasingly denied not by clear, repeatable legal standards, but by something closer to instinct. Not “I know obscenity when I see it,” but “I know danger when I feel it.”

The recent Supreme Court judgment refusing bail to Umar Khalid and Sharjeel Imam under the Unlawful Activities (Prevention) Act illustrates this drift. The judgment is long, careful, and studded with constitutional language. Article 21 is acknowledged repeatedly. Prolonged incarceration is recognised as a concern. But each acknowledgement is followed by a retreat. Delay, we are told, is not a trump card. Incarceration, however long, does not automatically offend liberty. Statutory rigour must prevail unless detention becomes so excessive as to shock the constitutional conscience. That formulation sounds balanced. In practice, it empties Article 21 of real force.

The core of the judgment lies in its handling of the “prima facie true” standard under Section 43D(5) of the UAPA. The Court insists it is not conducting a mini-trial. Yet it accepts the prosecution’s narrative almost in full. Speeches, meetings, associations, and ideological positions are woven into a story of conspiracy. The emphasis is not on proved acts, but on inferred design. Bail is denied not because guilt is established, but because the allegations evoke fear. The riots were serious. The social consequences were grave. The idea of coordinated unrest unsettles. And because it unsettles, continued custody feels justified.

Now, place this next to the Court’s approach in the Amtek Auto money laundering case, where bail was granted to a promoter accused of large-scale financial fraud under the Prevention of Money Laundering Act. Here, too, Parliament has imposed strict conditions. Here, too, the allegations involve hundreds of crores, layered transactions, and a sprawling evidentiary record. Yet the tone is entirely different. Prolonged incarceration, the Court says, cannot turn into punishment. Trial is nowhere in sight. Evidence is documentary and already seized. Article 21 applies regardless of the nature of the offence. Liberty must prevail.

The contrast is striking.

In one case, delay is contextual, almost incidental. In the other, it is decisive. In one, statutory rigour is treated as a moral shield for the State. In the other, it yields readily to constitutional concern. In one, the accused must wait until detention becomes nearly grotesque. In the other, the State must justify continued custody.

What explains this divergence? It is not the text of Article 21. It is not even the text of the statutes. What changes is the emotional register of the case. Economic offences, however large, rarely trigger the same visceral reaction as allegations of riots, protests, and threats to public order. One frightens in the abstract. The other frightens in the street.

This is where Potter Stewart returns. Bail denial begins to resemble obscenity law: difficult to define, but instantly recognisable to the judicial eye. I know danger when I see it. I know the threat when I feel it. The Supreme Court often warns against mechanical bail jurisprudence. It speaks of “contextual balancing” and “accused-specific assessment.” These phrases sound reassuring. But without firm anchors, they become invitations to unstructured discretion. Context becomes mood. Balance becomes instinct.

For trial courts and High Courts, this is a serious problem. A sessions court judge reading these judgments is left without a usable rule. Should prolonged incarceration tilt the balance towards liberty, or is it merely an unfortunate by-product of serious allegations? Does Article 21 actively restrain special statutes, or does it intervene only in cases of near-hopeless delay? How much fear is enough to justify continued custody?

The answers are not found in doctrine. They are sensed. This is not how precedent is meant to function. Precedent is supposed to discipline discretion, not legitimise it. When two Supreme Court judgments, applying the same Constitution, pull in opposite directions without acknowledging the tension, lower courts are left guessing which instinct is safer.

There is also a deeper constitutional concern. When bail decisions turn on the perceived moral or political valence of the allegation, equality before law weakens. Liberty becomes contingent not on necessity, but on narrative. Those accused of offences that provoke social panic face an invisible, higher threshold. Those accused of financial wrongdoing encounter a calmer judicial conscience.

Bail is not meant to be a referendum on a judge’s fear. It is meant to answer a limited question: Is custody necessary to secure a trial, prevent interference, or protect the process of justice? When fear replaces that inquiry, bail ceases to be law and becomes temperament. Potter Stewart’s famous line was an admission of failure. The Court could not define obscenity, so it retreated into subjectivity. That retreat was, at least, candid.

If bail jurisprudence is heading in the same direction, the least we can demand is similar honesty. If bail is to be denied because a case scares a judge, we should say so openly. We should stop pretending that we are applying neutral, transferable standards. Because once bail becomes a matter of “I know it when I see it,” the rule of law quietly gives way to the rule of instinct. And liberty, like obscenity, is left to the mercy of the judge.

(The writer is a senior advocate designated by the Supreme Court of India. The views are personal.)

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