Dismay as Delhi High Court dismisses bail plea of Umar Khalid, Sharjeel Imam

"Literally gasped when Justice Shailender Kaur pronounced 'all appeals dismissed'. The persons have been in jail for five years! Their bail pleas have gone through multiple benches, heard, re-heard, kept pending, and now, ultimately, dismissed in cold (sic)," exclaimed legal commentator Saurav Das on Tuesday afternoon after a bench of Justices Naveen Chawla and Shalinder Kaur dismissed the bail pleas of Umar Khalid and Sharjeel Imam, among others.

A court watcher said, “Between the judges saying 'all appeals dismissed' and the solicitor-general saying "grateful to your lordships, extremely grateful", there was a three-second silence and in that silence, you could hear the sound of all our collective hope of fairness and justice being shattered.”

Constitutional expert Gautam Bhatia, too, did not mince his words. “One of the worst judicial injustices in recent times, now perpetuated for indefinitely longer. The cases against these people are built on foundations of smoke; to justify their imprisonment without trial for 5+ years, on each occasion, court judgments lack all reason,” he posted on X.

Supreme Court lawyer Anas Tanveer fumed, “This is sheer injustice. Exasperated doesn’t even begin to cover it. Bail denied when trial hasn’t even started, 5+ years behind bars with no case to stand on. Hoped the bench would see reason…,”

All appeals dismissed, pronounced Justice Kaur while turning down the bail pleas filed by Khalid, Imam and seven other accused in the 2020 Delhi riots "larger conspiracy" case. The other accused include Athar Khan, Khalid Saifi, Mohd Saleem Khan, Shifa ur Rehman, Meeran Haider, Gulfisha Fatima and Shadab Ahmed.

Solicitor-general Tushar Mehta appeared on behalf of Delhi Police and opposed the bail pleas saying, “If you are doing something against the nation, then you better be in jail till you are acquitted or convicted.” He added that the accused persons' intention was to ‘globally defame the nation by choosing a particular day for more rioting and more arson’, reported Livelaw.

A positive fallout of the dismissal is, however, that the accused can now go up in appeal to the Supreme Court, something they were unable to do until the high court decided on their plea.

Most legal experts have been appalled by the flimsy evidence produced by Delhi Police. Portions of speeches, being included in WhatsApp groups of activists and sending messages were deemed incriminating enough to book the accused on serious charges of criminal conspiracy, sedition and rioting.

During the hearings, Khalid, represented through senior advocate Trideep Pais, had submitted that merely being on WhatsApp groups, without sending any message, did not amount to criminality. Pais had also pointed out that there was no recovery, monetary or otherwise, effected from Khalid, and that the alleged secret meeting that Khalid was accused of attending on the night of 23-24 February 2020 was not secret at all.

Imam’s counsel, advocate Talib Mustafa, submitted that Imam's role in the riots as alleged by the prosecution was stated to be till 23 January 2020, a month before the Delhi riots started, and the last overt act relied upon by Delhi Police was a speech delivered by him in Bihar.

As a senior PhD student, the trial court had ruled, Imam “craftily clothed his speech in which he avoided the mention of communities other than Muslim community but the intended victims of chakka jaam were members of communities other than Muslim community’.

Arguing before the court in February, Khalid’s lawyer had pointed out that charges against the accused were yet to be framed and Delhi Police had produced a list of 800 prosecution witnesses, who were to be examined by both prosecution and defence. The argument that keeping the accused in jail until they are finally acquitted or convicted was not reasonable, the court was told. The argument did not cut any ice though.

Das has the last word. “Bail is the rule, jail is the exception, we are told. Yet, for five years now, the ten young Muslim scholars, activists have been imprisoned without trial on charges so frivolous that they would collapse under the slightest judicial scrutiny. The High Court’s refusal to intervene, to insist on first principles, is not delay or caution: it is complicity. The two judges have treated liberty as expendable,” he wrote in a longer post on Tuesday afternoon.