The Slow Erosion of Due Process: How the Khalid & Imam Case Signals a Dangerous Trend in Indian Justice
Five years. That’s how long Umar Khalid and Sharjeel Imam have been detained – not convicted, but detained – on terrorism-related charges stemming from their participation in protests against the Citizenship Amendment Act (CAA). Yesterday’s Supreme Court decision, granting bail to several co-accused while maintaining the pre-trial imprisonment of Khalid and Imam, and imposing severely restricted conditions on any future bail applications, isn’t just a legal setback; it’s a chilling indicator of a growing normalization of prolonged pre-trial detention in India, and a worrying shift in the balance between state power and individual liberty.
A Two-Tiered Justice System?
The Supreme Court’s decision is starkly uneven. While Meeran Haider, Gulfisha Fatima, Shifa Ur Rehman, Shadab Ahmed, and Saleem Khan were granted bail, Khalid and Imam face a future where their freedom hinges on the pace of the prosecution’s investigation – specifically, the completion of testimony from ‘protected witnesses.’ Aakar Patel, Chair of Amnesty International India, rightly called this “shameful,” highlighting the politically motivated nature of the allegations. This effectively places their fate in the hands of the investigative process, rather than a timely and impartial judicial review.
This isn’t simply about these specific cases. It’s about a pattern. The imposition of a one-year ban on further bail petitions, absent a compelling justification, fundamentally undermines the right to a speedy trial – a cornerstone of any fair legal system. As Patel points out, denying the right to regular judicial review, especially after five years of detention, is deeply troubling. It raises the specter of a system where accusation becomes punishment, and the presumption of innocence is effectively nullified.
The UAPA and the Expanding Definition of ‘Terrorism’
The cases against Khalid, Imam, and their co-accused rely heavily on the Unlawful Activities (Prevention) Act (UAPA). Originally intended to address secessionist movements, the UAPA has been increasingly used to target dissent and peaceful protest. The broad and vaguely defined provisions within the UAPA allow for expansive interpretations of what constitutes a ‘terrorist act,’ making it easier to detain individuals for extended periods without concrete evidence.
This expansion of the definition of ‘terrorism’ is a key driver of the trend towards prolonged pre-trial detention. Critics argue that the UAPA effectively reverses the burden of proof, requiring defendants to prove their innocence rather than the prosecution proving their guilt. The stringent bail provisions within the UAPA, as demonstrated in this case, further exacerbate the problem. For more information on the complexities of the UAPA, see The Wire’s detailed explanation of the Act.
Beyond the Headlines: The Chilling Effect on Civic Space
The implications of this trend extend far beyond the individuals directly affected. The prolonged detention of activists and the restrictive bail conditions send a clear message: dissent will be met with swift and severe consequences. This creates a chilling effect on civic space, discouraging individuals from exercising their fundamental rights to freedom of speech and peaceful assembly.
The arrests following the 2020 Delhi riots, as highlighted in the background information, illustrate this point. Individuals like Meeran Haider and Gulfisha Fatima were targeted not for acts of violence, but for their vocal opposition to the CAA and their participation in peaceful demonstrations. This suggests a deliberate strategy to suppress dissent by criminalizing protest.
The Role of ‘Protected Witnesses’ and Due Process
The Supreme Court’s reliance on the completion of testimony from ‘protected witnesses’ as a condition for bail is particularly concerning. While witness protection is crucial in certain cases, the lack of transparency surrounding these witnesses and the potential for their testimony to be influenced raise serious questions about due process. Without proper scrutiny and cross-examination, the evidence presented by these witnesses may be unreliable, yet it will effectively determine the fate of the accused.
What Does the Future Hold?
The Khalid and Imam case is a watershed moment. It signals a potential future where pre-trial detention becomes the norm, particularly for those challenging the government or expressing dissenting views. Unless there is a concerted effort to reform the UAPA, strengthen judicial oversight, and uphold the principles of due process, we risk witnessing a further erosion of fundamental rights and a deepening crisis of justice in India. The normalization of prolonged pre-trial detention isn’t just a legal issue; it’s a threat to the very foundations of a democratic society.
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