By K Raveendran
Solicitor General Tushar Mehta’s argument before the Delhi High Court in the case concerning Umar Khalid and others points to the creeping erosion of basic constitutional protections in the criminal justice system. The High Court’s decision to reject bail to these accused in the UAPA larger conspiracy case linked to the 2020 Delhi riots was itself contentious, but what adds an unmistakable element of travesty is the reasoning advanced by the Solicitor General that the accused must remain in jail until convicted or acquitted. By any standard of jurisprudence or common sense, this assertion tears at the fabric of the presumption of innocence, one of the bedrocks of democratic justice.
The semantic twist lies in the phrase “or acquitted.” Mehta did not merely state that the accused must remain in custody until conviction, which would still have raised serious concerns of pre-trial punishment. He extended this to cover acquittal, thereby openly acknowledging the possibility that the accused may ultimately be found not guilty. In doing so, the state itself has conceded that these individuals may have committed no crime, and yet insists they must endure prolonged incarceration regardless of the outcome. The question that arises with full force is who bears responsibility if the court later exonerates them after they have spent years behind bars without trial. The deprivation of liberty in such cases ceases to be an unfortunate byproduct of legal procedure and instead becomes state-inflicted punishment in anticipation of a judicial finding.
The Unlawful Activities (Prevention) Act, under which the accused are charged, has already been the subject of intense criticism for its draconian provisions. Bail under UAPA is notoriously difficult, with the statute reversing the presumption in favour of bail that exists under normal criminal law. Instead, the court must be satisfied that the prosecution’s case is prima facie false to grant bail. This flips constitutional protections on their head, for it asks the accused to prove their innocence at the bail stage, long before trial, in a situation where the prosecution’s case remains untested. In practice, this ensures that even flimsy allegations couched in the language of conspiracy and national security can deprive individuals of their liberty for years. By reinforcing this legal imbalance with the sweeping claim that they must remain incarcerated until conviction or acquittal, the Solicitor General effectively asks the judiciary to rubber-stamp pre-trial detention as punishment.
What is particularly dangerous about this line of argument is that it normalises indefinite incarceration without accountability. If the accused are eventually acquitted, the state will not compensate them for years lost, reputations destroyed, and lives broken. There is no mechanism to restore the time stolen. The chilling message it sends is that dissent, activism, or even being in the wrong place at the wrong time can lead to imprisonment without trial, and the state will shrug off responsibility if courts later find no crime was committed. This erodes public confidence in both the judiciary and the executive, for the perception is not of justice but of state power weaponised against individuals.
There is no doubt that the Delhi riots of 2020 were a dark moment. But accountability cannot be built on selective incarceration or the suspension of fundamental rights. Justice cannot be served by keeping people behind bars indefinitely while trials are delayed and investigations drag on. The Constitution envisages a delicate balance between the powers of the state to prosecute crime and the rights of individuals to liberty and dignity. By arguing that the accused must remain in jail until acquitted, the state has tipped this balance into outright injustice.
The Supreme Court, when it considers the bail pleas on September 19 , will face not only a legal question but a constitutional one. At its core, the issue is whether the right to liberty and the presumption of innocence can survive in a climate where bail is treated as an exception rather than the rule. The highest court must recognise that prolonged pre-trial incarceration amounts to punishment without conviction, which the Constitution explicitly forbids. In the case of the UAPA accused, many have already spent over three years in custody without trial commencing. The continued denial of bail means the punishment is being served without any judicial determination of guilt. If the trials take another five years, what remains of justice if the accused are then acquitted?
The argument that national security or public order justifies this approach must be scrutinised with care. No democracy can permit the indefinite suspension of liberty merely because the state invokes the spectre of conspiracy. Security concerns must be addressed, but they cannot be a blank cheque for erasing rights. Indeed, it is precisely in cases of political sensitivity and public tension that constitutional safeguards must be applied most rigorously, for otherwise the very purpose of fundamental rights is defeated. The danger is that the precedent set here will not remain confined to the Delhi riots case. It can be extended to activists, students, journalists, and any citizen whom the state wishes to silence. The deterrent effect of long pre-trial incarceration, even without conviction, is already palpable in India’s civil society, where fear of arrest has curtailed dissent.
One must also consider the judiciary’s role in checking the executive. The High Court’s decision to deny bail has already raised concerns that the courts are increasingly abdicating their role as guardians of liberty. By uncritically accepting the prosecution’s claims at the bail stage, courts risk transforming into instruments of state control rather than protectors of rights. The Supreme Court has an opportunity to correct this course by insisting that liberty is the norm and that the extraordinary denial of bail must be justified with concrete reasons rooted in evidence, not vague allusions to conspiracy. (IPA Service)
