New Delhi: Speaking on The Wire’s regular programme Dil Se hosted by Senior Advocate Kapil Sibal, and published on its YouTube channel Monday, former Supreme Court Justice Madan B. Lokur described the court’s recent decision to deny bail to young student activists Umar Khalid and Sharjeel Imam as “deeply disappointing”. Justice Sudhanshu Dhulia, retired from the Supreme Court of India and a guest on the Dil Se episode, said he was “disappointed” by the denial of bail to Imam and Khalid. “As a citizen, and like many other people, I, too, had hoped that they would get bail,” he said. He said he studied the judgement to ascertain what set the five others accused in the case, who were granted bail in the same hearing. “But I could not see much of a difference between those who got bail and those who did not,” he said.Both Khalid and Imam are accused in the 2020 Delhi violence so-called larger conspiracy case, and their prolonged incarceration without trial or bail invited strong criticism from Lokur and other former judges and senior lawyers during the Dil Se discussion.While Justice Lokur cautioned that the denial of bail signals a rise in inconsistent outcomes in bail jurisprudence, other participants, including voluntarily retired Senior Advocate Dushyant Dave, questioned the Supreme Court’s interpretation of crucial precedents, delays in the legal process, evidence and constitutional guarantees under Article 21.Even in cases under the Unlawful Activities (Prevention) Act or UAPA, the speakers noted that the court rulings have varied between granting bail within much shorter incarcerations of under-trials, than Khalid and Imam’s five years and close to six year, respectively.Dave, who recently voluntarily retired from a long legal career, said among the reasons he quit being a lawyer was the unpredictability of rulings.Five years in Tihar Jail without trialOpening the discussion, Sibal pointed out that Khalid’s time in custody without any sign of a trial, raised serious constitutional questions:If an accused is kept in jail for five or six years without trial, without proceedings, without a verdict, relief must follow. Otherwise, it is a clear violation of Article 21.He cited Supreme Court precedents and the constitutional scheme, both of which “clearly affirm” that prolonged incarceration without a speedy trial violate the right to personal liberty, regardless of whether a case falls under UAPA, the Prevention of Money Laundering Act (PMLA) or any other stringent laws.Delays attributed to system, not accusedReferring to the prosecution’s claim in the ‘larger conspiracy’ case that the accused caused delays in the legal proceedings, Sibal presented details that showed other reasons – almost all resting with the judiciary or prosecution – that have caused the prolonged delay:In 55 hearings, the presiding officer was absent (on leave).In 11 hearings, staff shortages caused adjournments, including the absence of an ahlmad or Personal Assistant.In 26 hearings, adjournments occurred due to lack of time with courts.In 59 hearings, adjournments were sought by the “PP” public prosecutor.In 4 hearings, lawyers of the court were on strike.During the ‘framing of charges’, a crucial phase for the accused in any case, but particularly one where voluminous charge sheets exist against them, some of the lawyers sought “do-chaar” (hardly any) adjournments.“Not a single date was sought by the accused,” Sibal said, adding that on the basis of these do-chaar requests, the court held the accused responsible for the delay.“Though I placed these figures before the Supreme Court, they were not even mentioned in the judgment,” Sibal said.Umar Khalid’s speech: ‘Where is the terror?’The mainstay of the prosecution’s case is a speech delivered by Khalid on February 17, 2020, days before the Delhi riots. The programme played excerpts from it, in which Khalid repeatedly invoked non-violence and constitutional modes of protest.“If they use lathis, we will raise the tricolour. If they fire bullets, we will hold the constitution in our hands,” Khalid said, about seven minutes into the show. He also said, “We will not respond to violence with violence, nor hatred with hatred.”Sibal argued that nothing in the speech amounted to incitement, terrorism or violence. “After hearing this speech, no one can say it threatens the constitutional order,” Sibal said as he introduced the speech.This issue came up later in the show as well, as Dave noted about halfway into the programme, “These two boys should never have been arrested, along with the others [accused]. There was no case, not even a prima facie case.”Sibal pointed out to him that that judges accepted whatever the charge sheet filed by the prosecution claimed, to which Dave responded, “That’s not how judges are supposed to weigh [a legal matter].” He then referred to Section 15 [of the UAPA], which defines “terrorist acts”.“They have not used any bombs, they have not used any guns, they have not used any explosives. They have not caused any deaths. They have not endangered the security of this nation in any manner. So what is this case about?” Dave said, referring to the Justice Lokur commission.What he meant was a fact-finding team led by retired Justice Lokur in 2022, which also included as members former justices A.P. Shah, R.S. Sodhi and Anjana Prakash, and former home secretary G.K. Pillai. The Wire has previously reported on the fact-finding team’s report, “Uncertain Justice”.‘Completely wrong on delay’Justice Lokur said the Supreme Court’s reasoning on delay was fundamentally flawed. “On the question of delay, I think the judgment is completely wrong,” he said.He also referred to the “merits” or facts of the case, which he found did not back the charges against the accused. He noted during the discussion that the FIR against Khalid and Imam was filed in September 2020, but crucial documents were supplied only in August 2023.“For three years, the prosecution did not give documents. How can that delay be attributed to the accused?” he asked.Evidence reduced to meetings and WhatsApp group chatsCriticising the merits of the case against the accused in the ‘larger conspiracy’ case, Justice Lokur said the allegations relied on routine activities of students and activists, such as chatting on WhatsApp groups, organising meetings or distributing pamphlets.“They attended meetings. Anyone can attend meetings. They were members of WhatsApp groups. What did they say there? We have not been informed,” he said.S.Q.R. Ilyas, Umar Khalid’s father, outside the Supreme Court of India. Photo: PTIJustice Dhulia raised the issue of precendents examined by the Supreme Court, which, in his view, it did not interpret correctly. He said, “The court cites Union of India v. Najeeb. This case, which was decided by a three-judge bench, has, in my opinion, been completely misinterpreted. It [Najeeb] is a Supreme Court judgment which says that long incarceration has to be seen in the context of what has actually been done. And it [the Supreme Court bench hearing Khalid and Imam’s bail pleas] speaks only about the length of the sentence already spent in jail.”“Whereas, Najeeb talks about two things: long incarceration and the improbability of a speedy trial being conducted, Justice Dhulia said. He also pointed out that the Supreme Court had noted the speedy trial would be impossible in the Najeeb case because a large number of witnesses – “more than 200, or 257” – were still to be examined. “Whereas in this [2020 conspiracy case] there are more than 900!”He also pointed out that the three-judge Najeeb judgement was “binding” on the bench that heard Khalid and Imam’s bail plea.Bail jurisprudence applied selectivelyJustice Lokur also questioned the court’s direction barring a fresh bail application for one year for either Khalid or Imam. “Bail is not charity. You cannot say someone cannot apply for bail for a year,” he said.Sibal said, “As Justice Dhulia has said, there are over 900 witnesses and there are [at least] 30,000 documents. There is absolutely no possibility of the trial finishing in one year – so why has the court said that they cannot apply for bail for a year.”Justice Dhulia also noted a short while later that the Supreme Court not only minsinterprets Najeeb, but also does not mention in the judgement the fact that “900 witnesses are to be questioned – which can absolutely not be done. And again, Najeeb says [is a factor allowing bail]”.Article 21 ‘circumscribed by statute’?One aspect that invited particular concern on the panel was the court’s observation that Article 21 does not operate “in isolation” from statutory restrictions: meaning that constitutional right to life and liberty could be read down by a statutory enactment by parliament (not a constitutional amendment).During this discussion with Sibal, Justice Dhulia said, “This logic I have heard for the first time. And which court is [saying] this? The Supreme Court of India. Right? Here is Article 21, and there is this parliamentary statute [Section 43D, UAPA]. But the judgment does not see the ambit of Article 21 at all. Nowhere is it discussed. Instead, it is only said that Article 21 does not mean just your liberty; it also means the liberty of citizens. Where is it there? So there are some new ‘insights’ emerging in this judgement.”Section 43D of the UAPA lists how criminal procedure works in terrorism cases. The fifth subsection states, relevant to this discussion, says that an accused shall not be released on bail if the court, on a prima facie examination of the case diary or charge sheet, is of the opinion that the allegations against the accused are “prima facie true”.“If Article 21 is circumscribed by special statutes, then none of us are safe,” Dave then warned. He noted that even under stringent laws like the older Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Narcotics Drugs and Psychotropic Substances (NDPS) Act, the Supreme Court has held that constitutional liberty cannot be overridden.How public loses faithThe panelists warned that rulings like this one erode public confidence in the judiciary. While the case against Khalid and Imam and other student activists is of primarily an alleged conspiracy, none of the 750 FIRs related to the violence itself mention any of them.Sibal pointed out that in 116 of these 750 cases, judcial determinations have already been made. And, in 97 cases of these 116 cases, there have been acquittals – in which the acquitting courts have often excoriated the police for “cooking” case diaries, “fabricated” evidence and other wrongdoings.Dave said, “Young people, who should never have been arrested, have had their futures destroyed.”The discussion concluded with a call for judicial introspection and accountability, sounding the caution that continued denial of bail in long-pending cases risked normalising pre-trial punishment.“This is not about one case,” Sibal said. “It is about liberty, the constitution and the future of justice in this country.”(Note: Senior Advocate Kapil Sibal represents an accused in the larger-conspiracy case in the Supreme Court.)