E-Paper
Delhi riots case: HC breaks from SC’s stance on UAPA detentions
The court read the accused’s participation in WhatsApp groups such as the Delhi Protest Support Group and the JMI Coordination Committee as evidence of coordinated planning
On September 2, 2024, the Delhi high court denied bail to student activists Umar Khalid, Sharjeel Imam and seven others in the larger conspiracy case arising from the February 2020 Delhi riots. The court invoked Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA), which restricts bail if the accusations are found to be prima facie true.
The judgment, running 133 pages, set out in detail the prosecution’s material, witness statements, WhatsApp chats, pamphlets, and public speeches. Its central reasoning rests on the prosecution’s theory of a “conspiracy.” The court accepted this theory broadly, treating a range of political activities as part of a design to instigate violence.
The prosecution’s case
The prosecution relied primarily on two categories of evidence.
The first was anonymous witness statements. Protected witnesses, referred to by pseudonyms such as “Golf, Bravo, and Helium,” alleged Khalid spoke at secret meetings about stockpiling weapons and preparing for violence during US President Donald Trump’s visit. The second was circumstantial evidence, which included Khalid’s public speeches, his alleged participation in meetings, WhatsApp group discussions, pamphlets, and videos.
On this basis, the prosecution described Khalid and Imam as the “intellectual architects” of the movement against the Citizenship Amendment Act, with their speeches and coordination seen as giving strategic direction to the protests.
The court accepted this narrative. For instance, it treated a January, 2020 public meeting in Seelampur in North-east Delhi, where Khalid allegedly spoke of “riots with bloodshed” as a significant incriminating event. It also viewed his speech in Amravati, in Maharashtra, delivered shortly before Trump’s visit, as timed to incite violence and embarrass India internationally.
The court read the accused’s participation in WhatsApp groups such as the Delhi Protest Support Group and the JMI Coordination Committee as evidence of coordinated planning, given that discussions allegedly included chakka jams, stockpiling, and removal of CCTV cameras.
The high court’s approach
While circumstantial evidence may have alternative explanations, the high court treated these elements cumulatively as corroborative of the conspiracy allegation. In doing so, it found that the statutory threshold under Section 43D(5) was satisfied, and bail was therefore barred.
This approach also shaped how the court addressed the issue of prolonged incarceration. Citing the natural pace of trial, the court declined to treat Khalid’s extended custody as a ground for release. This stands in contrast with Supreme Court precedents such as the 2021 judgement in the case of Union of India vs KA Najeeb, and the 2024 judgements in the cases of Jalaluddin Khan vs Union of India, and Athar Parwez vs Union of India, where the apex court recognised prolonged undertrial detention as violating Article 21 of the Constitution.
Charged under the UAPA, IPC, including sections on conspiracy, attempt to murder, and causing grievous hurt, and provisions of the Explosive Substances Act, Najeeb was in custody for over five years before the Supreme Court granted him bail in 2021.
The top court noted that 276 witnesses were yet to be examined, making it clear that the trial could not be completed within a reasonable time. It therefore held that prolonged incarceration without trial violated Article 21, and granted him bail despite the UAPA bar under Section 43D(5).
“While Section 43D(5) of the UAPA imposes strict limits on bail, the court clarified that constitutional powers can override such restrictions to safeguard liberty, though statutory bars and constitutional guarantees must be carefully balanced,” the SC said at the time.
In 2024, the SC granted bail to Athar Parwez, booked by the National Investigating Agency, under IPC and UAPA, after holding that his prolonged incarceration, coupled with the unlikelihood of an early trial given the large number of witnesses, amounted to a violation of Article 21. While acknowledging the statutory bar under Section 43D(5) of UAPA, the apex court emphasised that constitutional safeguards against indefinite detention must prevail.
In contrast, in the present case, the Delhi high court held that though Khalid and Imam have spent a considerable time in custody (over five years), the seriousness of the allegations against them and the existence of a prima facie case outweighs their Article 21 claim for release.
The court also distinguished Khalid and Imam from their co-accused in the case, who have been granted bail, characterising them as “key conspirators” with a more central role.
The high court’s judgment illustrates how broadly the conspiracy framework under UAPA can be interpreted. Once conspiracy is read expansively, the distinction between primary conspirators and others becomes difficult to maintain, since ordinary acts such as attending meetings or sharing messages may be subsumed within the larger conspiracy. The decision underscores a fundamental tension between the stringent bail restrictions under UAPA and the constitutional guarantee of personal liberty under Article 21.
