On Tuesday (September 2, 2025), the High Court of Delhi passed an order denying bail to nine individuals accused in what is popularly known as the “Delhi riots case”. At the time of writing, these individuals have now been in prison for more than five years, with the trial yet to commence.Previously, I have examined two prior orders of the sessions court and the high court denying bail to Umar Khalid, one of the nine individuals. In ‘Stenographer for the Prosecution’ and ‘Forgetting the Basics’, I have argued that a close reading of these orders reveals a serious miscarriage of justice by the two courts involved: instead of a fair assessment of the evidence placed before them, these courts embarked upon an exercise to fill in the gaps in the prosecution’s case with unwarranted inferences and assumptions, provided a distorted reading of the evidence that was on the record, and deployed a reasoning process unknown to law or to logic. This post will examine Tuesday’s judgment (which came after an unjustifiable three-year-delay at the high court, discussed here) with respect to Umar Khalid.First, a few preliminary remarks. The “Delhi riots” refer to the communal violence in the month of February 2020 in Delhi, which left 54 people dead and many more injured. The accused in this case are all individuals who, in the months of December 2019 and January 2020, had been involved in public protests against the Citizenship Amendment Bill (later, the Citizenship Amendment Act). The problem for the prosecution, however, was that none of these individuals had publicly called for, or instigated, violence or riots. To get around this, the prosecution’s case was – and is – founded on the idea of a conspiracy: that whatever these individuals said in public, in secret, they conspired to bring about violent riots. The prosecution’s case of conspiracy, in turn, rested on two evidentiary limbs: statements of “protected witnesses” (that is, anonymous and secret witnesses whose identities are withheld from the defence) alleging that in certain secret meetings, they had heard these individuals call for violence; and the existence of circumstantial evidence such as messages on a WhatsApp group, phone calls in the aftermath of the riots, or public speeches that were alleged to carry a dual meaning.When faced with a circumstantial case of this kind, I have argued previously, a court can do one of two things. Given the drastic consequences of denying bail (years of incarceration), it can adopt an “eyes wide open” approach, which requires the prosecution evidence on record to be concrete and specific, and for there to exist a clear link between fact and inference (of guilt). Or it can adopt an “eyes wide shut” approach, which takes not just the evidence on the record, but the prosecution’s inferences from that evidence on face value. It is one of the vagaries of the Indian criminal legal system that you will find instances of both approaches at all levels of the judiciary, dependant entirely on the judges involved. In fact, sometimes – and as Umar Khalid himself would find out to his cost – you will find the two approaches in the judgments of the same judge, a few months apart. Such is the duality of man.Also read: Delhi HC Denies Bail to Umar Khalid, Gulfisha Fatima, Sharjeel Imam: A TimelineIn the previous two posts, I have analysed how the sessions court and the high court’s orders denying bail to Umar Khalid represent a particularly extreme instance of the “eyes wide shut” approach. Quite apart from the injustice of keeping an individual in jail for years on the strength of “secret” witnesses, even the statements of these “secret” witnesses were almost all extremely vague. Furthermore, the sessions court held it to be an incriminating fact that after the riots broke out, “the calls still show how different accused persons are linked and talking to each other after the riots have begun and more importantly, most of the accused persons involved reached a common place.” Inferences of Khalid’s guilt were gleaned from his “membership” of WhatsApp groups, his “participation” in certain meetings, and his “reference” to Donald Trump’s visit to India – with no specific facts to support instigation or planning of violence. In sum:“The case against Khalid, therefore is based on: (a) membership of WhatsApp groups; (b) participation in various meetings, the particulars of which are provided by anonymous witnesses, for the most part in vague terms; and (c) being mentioned in a “flurry of calls” after the riots began.”The high court went one step further, holding that Khalid’s use of the terms “inquilabi salam” (“revolutionary greetings”) and “krantikari istiqbal” (“revolutionary greetings”) in a public speech were incriminating, because unless you explicitly stated that your revolution was going to be a bloodless one, the assumption was that you were implicitly calling for violence (the fact that in the same speech Khalid referred multiple times to peaceful and non-violent protest was discounted). In sum, as I wrote at the time, in addition to the sessions court, the high court’s judgment rested on the following four assumptions:“That calling for a chakka jam logically entails incitement to violence and riots; that membership of WhatsApp groups is indicative of participation in a conspiracy; that a “flurry of calls” after a riot has started – between activists who have been engaged with the issue in question – is indicative of a conspiracy; and that Umar Khalid’s involvement in protests agains the CAA is indicative of his participation in a conspiracy to cause riots.”These two judgments were delivered in 2022, when Khalid had spent two years in jail without trial. If you thought, however, that three years down the line, when the high court was faced with the plight of a man who had spent five years in jail without trial, it would at least attempt to provide more plausible justifications for why this was so, you would be mistaken. In many ways, indeed, Tuesday’s judgment by Naveen Chawla and Shalinder Kaur JJ is worse than the two previous ones: while previously, the sessions court and the high court had made some effort – however distorted – to engage with the evidence on record, Tuesday’s judgment does not even do that. So, in paragraphs 133 and 134, the high court holds:“Appellant Umar Khalid also delivered speeches in Amravati on 17.02.2020, urging protests on 24.02.2020, which coincided with the State visit of the President of the USA, which is alleged by the prosecution to have deliberately been timed to cause violent riots on 23/24.02.2020 to garner international attention. The above role, as assigned by the prosecution to the Appellants, cannot be lightly brushed aside.”Missing from this is any analysis of what Khalid actually said at Amravati. The high court, as I have noted above, put Khalid’s words in a torture rack and derived some twisted meaning from them, but at least it acknowledged that there were words that it had to analyse, and had to show that there was some link between the words and the violence. Tuesday’s judgment, however, liberates itself from even that basic judicial obligation. Paraphrasing the high court’s judgment: “A man said something. Violence happened. The Prosecution says this is evidence of a conspiracy. Therefore it must be so.”In paragraph 136, the judgment repeats the allegation of “allegedly inflammatory and provocative speeches”, without, once again, telling us what Khalid actually said. A hint of this appears in paragraph 135, where the judgment notes that the “prosecution case further alleges that the Appellants were constantly preaching to the masses by misleading them into believing that the CAA/NRC is an Anti-Muslim law.” But if this is the standard for keeping someone in jail for five years without trial, then we might as well repeal Article 19(1)(a) from the Constitution as obsolete: this is no legal standard at all.Perhaps aware that it grasping at straws, the judgment then resorts to using fearsome words. Khalid – along with Sharjeel Imam – it notes, “were the intellectual architects behind the entire conspiracy.” But who or what is an “intellectual architect” of something? How do you define an “intellectual architect”? How does the law define it? What is abundantly clear is that, much like the two courts before it, this bench, unable to find any actual incriminating evidence against Khalid, is forced to take refuge in semantics. Because what, after all, is the need for evidence when you can label someone an “intellectual architect”, and be done with it? I have previously referred to this as Humpty Dumpty jurisprudence, where the court uses language and words the way it wants (regardless of their actual meaning), simply because it has the State power to inscribe that meaning into law (and, in this case, into jail time).Also read: Is There Any Hope From the Courts in the Delhi Riots Conspiracy Case?A final argument was made by Khalid’s counsel – and indeed, counsel for all the individuals: the glacial pace of the case (at the time of writing, the trial has yet to begin), and the fact that these people had now been in jail for five years, made out a strong case for bail under Article 21 of the Constitution, and in accordance with the judgment of the Supreme Court in K.A. Najeeb. Chawla and Kaur JJ’s response to this argument is perhaps the starkest example, in this judgment, of something scholars have referred to as “judicial barbarism”. The court says:With respect to the argument of delay and prolonged incarceration, as noted hereinabove, the present case involves complex issues, and the trial is progressing at a natural pace.There are moments when people damn themselves by their own words. As in the case of the Supreme Court’s observation, during the Emergency, about the “maternal care” lavished upon detainees by the regime, there are words that reflect – and betray – the character of an entire institution. Nothing needs to be said: these words stand by themselves, a monument to infamy.In history books, we read about Josef Stalin’s Moscow Trials (1936-1938), the show trials in which Old Bolsheviks and Stalin’s own officials were condemned to death on charges of “conspiracy”. Apart from the fact that the Moscow Trials proceeded on the basis of coerced confessions (obtained through torture), these trials – as later analyses would point out – were marked by a contempt for evidence, and for the standards by which evidence ought to be proven in a court of law, to a sufficient degree to justify imprisonment or death: it was sufficient to allege a great conspiracy (“masterminded” by Leon Trotsky), and the rest would follow. The pages of history are littered with accounts of Moscow Trials as a stepping stone towards a society abandoning the last vestiges of a commitment to the rule of law, and descending into a moral abyss. One need not draw analogies; it is sufficient to note that while history does not repeat itself, it does rhyme; and while the verdict of history is, eventually, damning, it is, far too often, too little, too late.One only hopes that it will not also, one day, be too late for the nine individuals who have – and will pay – the cost in months and years of lost liberty.Gautam Bhatia is a lawyer. This article was originally published on the author’s blog. It has been lightly edited for style.