New Delhi: When political activist Umar Khalid appears before the Supreme Court on 19 September 2025 seeking bail, his fate will be shaped by Justice Aravind Kumar—the judge whose “jail, not bail” interpretation of India’s anti-terror law directly informed the Delhi High Court’s latest denial of bail for Khalid and other accused.

Justice Kumar, now heading the two-judge Supreme Court bench with Justice N V Anjaria, authored the 2024 ruling in Gurwinder Singh vs State of Punjab. This judgment declared that conventional bail principles—“bail is the rule, jail is the exception”—do not apply to the Unlawful Activities Prevention Act (UAPA).

Citing section 43(D)5, Justice Kumar concluded that jail is the default under UAPA unless a limited review finds the evidence against the accused to be weak. 

He wrote: “The conventional idea in bail jurisprudence vis-a-vis ordinary penal offences that the discretion of courts must tilt in favour of the oft-quoted phrase– ‘bail is the rule, jail is the exception’—unless circumstances justify otherwise—does not find any place while dealing with bail applications under UAPA Act.” Delays in trial, the judgment stated, cannot alone justify bail.

The Delhi High Court’s 2 September 2025 order denying bail to Khalid, Sharjeel Imam, Gulfisha Fatima, and Meeran Haider explicitly referenced Gurwinder Singh and NIA vs Zahoor Ahmad Shah Watali, which bars bail under section 43D(5) if allegations appear prima facie credible. 

Judges Navin Chawla and Shalinder Kaur said, “the grant of bail on the sole ground of long incarceration and delay in trial is not a universally applicable rule in all cases.”

Khalid and 17  others are accused in the “larger conspiracy case,” which the police say concerns the 2020 northeast Delhi riots during the Citizenship Amendment Act protests, which left 53 people dead—most of them Muslim. 

Ten of them were denied bail this month. 

Judgements Not Followed

Yet other Supreme Court decisions tilt in the other direction. 

In Union of India vs K A Najeeb (2021), the court said: even if offences are “serious in nature, delay in trial and long periods of pretrial detention would tilt the balance in favour of granting bail.” 

In Vernon vs State of Maharashtra (2023), the judges stated: “bail should be granted when there is a long period of incarceration and that the seriousness of the charges did not justify continued detention.” 

Similarly, in Sheikh Javed Iqbal vs State of Uttar Pradesh (2024), a judge said that prolonged pre-trial detention should outweigh the “seriousness of charges,” which cannot justify indefinite imprisonment.

But in denying bail to Khalid and others, Justice Shalinder Kaur examined these precedents, noting they established “prolonged detention without trial was a violation of the right to life and liberty under Article 21 of the Indian Constitution and supported the granting of bail in such a case, regardless of statutory restrictions and gravity of the offences,” but it would seem that she did not find applicable in this case. 

In Vernon vs State of Maharashtra, the two-judge bench also said that it is not enough to accept the prosecution’s case, and a “surface level analysis of probative value of evidence” is required. 

The Delhi High Court ruled that “the probative value of the evidence” against Khalid  “cannot be branded as weak”. This is despite reporting that “the case is built on inferences, conjectures and fabrications. 

Due to the lack of evidence, the prosecution had to rely on anonymous ‘protected’ witnesses who gave similar or identical statements against the accused and a handful of WhatsApp messages from groups that were used to organise and coordinate the protests.” Read more.

In June 2021, the Delhi High Court granted bail to Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha, holding that “no prima facie case of terrorism was made out, the allegations—organising chakka jams (roadblocks)—did not even constitute terrorism, and that police had blurred the lines between dissent and terrorism.” (full order) 

Four years later, a different bench denied bail to 10 others, including Khalid, citing delay in pre-trial detention for up to five and a half years as insufficient grounds.

Justice Kumar previously served as chief justice of the Gujarat High Court and a judge in Karnataka. Justice Anjaria, also a former chief justice of Karnataka and judge in Gujarat, was promoted to the Supreme Court by the Collegium, superseding at least 13 senior high court judges.

Supreme Court Hostility

After the Delhi High Court rejected his bail in October 2022, Khalid turned to the Supreme Court. The bench struggled to explain its reasoning, making a “comparison to the French revolutionary Maximilian Robespierre.” 

Despite many Supreme Court entreaties (here, here, here) that “bail is the rule and not the exception” in criminal cases, Khalid’s bail plea was never heard in the nine months it moved from bench to bench.

In a February 2025 interview, former Chief Justice D Y Chandrachud specifically referenced “at least seven, if not more, adjournments which were sought by the counsel appearing for Umar Khalid and eventually, the application for bail was withdrawn.” 

At the time, we wrote this argument minimised the fundamental injustice during his tenure as chief justice: specifically, the issue that Khalid was an undertrial prisoner for more than four years (now five) in a case with no trial on the horizon and the principle that bail is the rule enforced inconsistently and arbitrarily. 

Khalid’s lawyers said adjournments had little to do with delay tactics, but rather concern over “assigning several politically sensitive cases, including Khalid’s, to Justice Bela Trivedi, contrary to the assignment rules, which require the matter to be listed before the senior judge on the bench”.

The first woman judge from the Gujarat High Court to be elevated to the Supreme Court, Trivedi served as the law secretary in Narendra Modi's government when he was the chief minister of Gujarat from 2001 to 2014. 

Modi's Bharatiya Janata Party has held power since 2014, following his ascension to Prime Minister and the party’s victory in three consecutive general elections. 

Lawyers questioned why their cases were assigned to Trivedi, whose record for upholding civil liberties and personal freedoms was viewed with scepticism. 

Withdrawing from the Supreme Court in February 2024, Khalid returned to the lower court, where his bail plea was rejected for a second time in May 2024. 

Following this, Khalid returned to the high court, which last week accepted the State’s case at face value, disregarding the apparent lack of evidence supporting the allegations. 

The Lack Of Evidence

Last week in the trial court, arguing the charge stage before additional sessions judge Sameer Bajpai, Khalid’s lawyer Trideep Pais recounted arguments made over four years, noting the FIR—registered on 6 March 2020—referenced speeches by Khalid.

Pais said, “It has taken you four months to get hold of one speech that is the basis of the FIR of the case against me. The speech does not show any criminality.” 

The police eventually produced only one speech from Amravati, Maharashtra, a week before the riots, located over 1,000 km from Delhi. That speech contained nothing criminal. 

The FIR’s initial evidence was a tweet by a BJP official, later amplified by TV channels.

The tweet said: “Umar Khalid, already facing sedition charges, gave a speech in Amravati on 17 Feb where he exhorted a largely Muslim audience to come out on the streets in huge numbers when Trump arrives in India on 24th. Was the violence in Delhi planned weeks in advance by (sic) tukde tukde gang?”

“It has taken you four months to get hold of one speech that is the basis of the FIR of the case against me,” said Pais. “The speech does not show any criminality.”

Previous Fabrications

The first time that Pais defended Khalid’s speech was before additional sessions judge Amitabh Rawat in August 2021. 

Pais reiterated that Khalid had never started any WhatsApp group linked to the protests, and the police only produced four messages from him; all of them “innocuous” and not showing any criminality. 

The “conspiracy” case is one of more than 700 cases registered in connection with the Delhi riots. 

Pais referred to three cases in connection with the Delhi riots where witnesses and investigating officers were found to have fabricated statements and evidence, ultimately resulting in the discharge of the accused. 

“There is a target on somebody’s back. How to reach the target is the job of the chargesheet,” said Pais. “You decide who to implicate and then make the case around it. How to reverse engineer it.”

In one of these cases, which we reported on extensively last year, the additional sessions judge discharged nine Muslims implicated by an investigating officer with the use of "artificially prepared” statements when a Hindu mob burned the eatery in question. 

Khalid has also been discharged in another case connected with the Delhi riots case, where the additional sessions judge did not rely on the statement given by an anonymous “protected” witness about a meeting between Khalid and two accused, Tahir Hussain and Khalid Saifi, to allegedly discuss funding for engineering the riot, but could not say what was said at this meeting. 

The State has not challenged the discharge. 

In 17 or 93 acquittals in Delhi riots cases, courts found “fabricated” evidence in 17, The Indian Express reported this week. 

‘Please See The Falsehood’

Referring to the Afzal Guru controversy, following which he faced a sedition case in 2016, the “larger conspiracy” chargesheet said Khalid was “a harbinger of the call Bharat tere tukde tukde honge” (India you will be broken into pieces) at a protest at the Jawaharlal Nehru University, where he was a student.

Pais pointed out that the chargesheet for the 2016 case did not say this.

Pais also reiterated that Khalid never started any WhatsApp group linked to the protests: the police produced only four messages from him—all “innocuous.”

He directly addressed cases where courts found that investigating officers had fabricated statements to fit accused individuals. “There is a target on somebody’s back. How to reach the target is the job of the chargesheet,” Pais said. 

“You decide who to implicate and then make the case around it,” said Pais. “How to reverse engineer it (sic).”

Much of the “larger conspiracy” chargesheet is dedicated to impugning Khalid’s character, calling him a “veteran of sedition” and “unapologetic proponent of political Islamic extremism.” Pais called this “flowery language” and the “fertile imagination” of the author, arguing it had no basis in fact or law.

“Please see the falsehood being peddled here,” said Pais, referring to the Afzal Guru controversy and the 2016 JNU sedition case. “It is the same police agency. They attribute a false statement to him here that they do not attribute to him in 2016. Please see the falsehood of the chargesheet.”

(Betwa Sharma is managing editor of Article 14.)

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