Senior Advocate Sanjay Hegde analyses the Supreme Court’s Delhi riots bail judgment, warning that prolonged incarceration, expansive UAPA interpretation, and criminalisation of speech signal a troubling shift in how Indian democracy treats dissent and personal liberty.
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NEW DELHI: In a powerful critique published in The Tribune, Senior Advocate Sanjay Hegde examines the Supreme Court’s recent bail judgment in the Delhi riots conspiracy case and warns that its implications stretch far beyond the fate of Umar Khalid and Sharjeel Imam. According to Hegde, the ruling raises fundamental questions about how Indian democracy treats dissent, speech, and personal liberty under stringent security laws like the UAPA.
As Hegde writes,
“This judgment matters far beyond the fate of any Umar Khalid or Sharjeel Imam. It speaks to what kind of dissent Indian democracy is prepared to tolerate, and at what cost.”
While the Court granted bail to several accused, its refusal to release Umar Khalid and Sharjeel Imam, despite nearly five years of incarceration without trial, has become the most troubling aspect of the judgment.
As Senior Advocate Sanjay Hegde points out, the Supreme Court itself acknowledges a core constitutional truth: pre-trial detention cannot become punishment, and prolonged incarceration directly implicates Article 21 of the Constitution, which guarantees the right to life and personal liberty.
Yet, the Court simultaneously neutralises this principle by holding that delay does not automatically justify bail. Instead, it is described as merely a “trigger for heightened judicial scrutiny.” In effect, years spent in prison without trial are treated as an administrative inconvenience rather than a constitutional breakdown.
Hegde summarises the consequence bluntly:
“In other words, five years without trial is not a constitutional failure; it is an administrative inconvenience that invites careful thought, not release.”
Hegde highlights how Section 43D(5) of the UAPA dominates the bail analysis. Under this provision:
- Courts only examine whether accusations appear prima facie true
- Evidence is not weighed
- Defence arguments are deferred to trial
- The prosecution’s version is accepted at face value
This framework, inherited from the Watali judgment (2019), ensures that the chargesheet becomes both the allegation and its own justification, making bail under UAPA the rare exception rather than the rule.
One of the most consequential aspects of the judgment, according to Senior Advocate Sanjay Hegde, is the Court’s distinction between “peripheral participants” and “prime conspirators.”
Umar Khalid and Sharjeel Imam were placed in the latter category, not for committing acts of violence, but for being described as:
- Ideological drivers
- Central organisers
- Conceptual architects of protest
Crucially, there is no allegation that either man committed violence or was present at any riot site. The material against them consists largely of speeches, meetings, pamphlets, and protest coordination.
Yet, these forms of democratic engagement were treated as indicators of conspiratorial centrality.
Hegde warns that the judgment sets a dangerous precedent:
Speech becomes structure, influence becomes intent, and visibility becomes culpability.
Once this logic is accepted:
- Those who speak effectively are punished
- Those who organise widely are suspected
- Those who articulate dissent coherently are denied bail
As the article notes,
The more seriously the State takes your ideas, the less seriously the Court takes your liberty.
Once ideological influence is treated as criminal centrality, bail effectively becomes a privilege for those deemed insignificant. Hegde writes:
“Those who are marginal may go free. Those who speak effectively, organise widely and articulate dissent coherently are told that their prominence counts against them.”
In such a framework, democratic engagement itself becomes a liability.
Citing a passage in the judgment, Senior Advocate Sanjay Hegde observes that the Court frames liberty not as a baseline constitutional guarantee, but as a conditional interest subordinate to security concerns.
This approach normalises legal exceptionalism, where special statutes override foundational freedoms. The result is a judiciary that speaks a different legal language whenever “national security” is invoked.
Drawing on constitutional history, Hegde contrasts the judgment with Lord Atkin’s famous wartime warning that “the law speaks the same language in war as in peace.”
Instead, he observes,
“The judgment does something subtler. It assumes that when security is invoked, the law must speak in a different voice.”
This shift, he suggests, risks producing judges who are “more executive-minded than the executive.”
Hegde highlights that dissent is not an ornamental feature of democracy; it is its safety valve. A peaceful protest allows anger and opposition to be expressed without violence.
However, when dissent is reimagined as conspiracy:
- Protest becomes preparatory conduct
- An organisation becomes an unlawful association
- Agitation becomes a threat to sovereignty
In this framework, even Dr B.R. Ambedkar’s call to “Educate, Organise, Agitate” risks being interpreted as criminal behaviour.
The Supreme Court granted bail to several accused and permitted Umar Khalid and Sharjeel Imam to renew their bail pleas after a year. While these concessions offer limited relief, Hegde argues they fail to address the core issue.
He asks the question:
If five years in prison without trial is insufficient to justify bail for those deemed ideologically influential, then what is? Six years? A decade?
Senior Advocate Sanjay Hegde concludes that this was a case where constitutional principles should have led to bail. Instead, the Supreme Court chose institutional caution over constitutional courage.
By endorsing prosecutorial narratives and diluting the presumption of liberty, the judgment sends a powerful message throughout the judicial system:
“Liberty is optional. Incarceration is safe.”
For those who have finally walked out of prison, there is relief. For those still inside, there is a calendar date pencilled in, and a hope that next year may bring better news.
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