THE Supreme Court’s refusal to grant bail to Umar Khalid and Sharjeel Imam, while accepting the bail pleas of five other accused in the same case, is not merely a judicial order affecting two individuals. It marks a deeply troubling moment for constitutional democracy in India. Additionally, while the ruling party, its army of toxic trolls, and a largely captive media ecosystem celebrate this unjust and far-reaching order, the political silence of much of the mainstream opposition — with the exception of the Left parties —  remains conspicuous and must be questioned.

The order reinforces a pattern in which extraordinary laws, most notably the Unlawful Activities (Prevention) Act (UAPA), are normalised as instruments for the prolonged incarceration of dissidents, rather than being used for the proclaimed goal of protecting “national security.” The bench of Justices Aravind Kumar and N V Anjaria accepted the prosecution’s assertion of prima facie involvement and held that Umar Khalid and Sharjeel Imam were “on a qualitatively different footing” from the other accused.

Ironically, the only obvious difference is that neither of them was present in Delhi during the period of the violence. Sharjeel Imam was already in judicial custody, having been arrested in January — nearly a month before the Delhi violence — on the charge of making an inflammatory speech. Umar Khalid was elsewhere. These facts, which should have strengthened the case for their non-involvement in any alleged conspiracy, were instead turned on their head and absence from the site of violence was perversely interpreted as evidence of orchestration.

In its order, the Court has reversed the logic of earlier Supreme Court judgments that took a more balanced view on granting bail under UAPA. The order adds new and dangerous dimensions to the already draconian nature of the law. Under this interpretation, one need not be involved in any act of violence, nor directly provoke violence. Participation in a road blockade, disruption of public spaces, or actions deemed to affect “economic stability” can now be construed as acts against national interest and treated as terrorism.

Under such an expansive reading, workers going on strike, Adivasis blocking roads to protest mining in their lands, or slum dwellers resisting the illegal demolition of their homes could all potentially be arrested under UAPA and designated as terrorists. What then remains of the “golden triangle” of the Constitution — Article 14 (right to equality), Article 19 (freedom of expression), and Article 21 (right to life and liberty)? This interpretation opens the door for an authoritarian government to equate dissent with sedition and to systematically corral opposition to its policies through fear and incarceration.

At the heart of the injustice lies another stark reality: the prima facie evidence and the actual chronology of events point to an entirely different direction. The backdrop to the violence was the widespread opposition to the amended Citizenship Amendment Act (CAA). This opposition was, by and large, peaceful, secular, and unprecedented in its spread across caste, community, and regional lines throughout India. The demonisation of this protest became one of the main planks of the BJP’s campaign in the Delhi Assembly elections held in the first week of February 2020.

Who can forget the provocative words of the Home Minister urging voters to “press the button so hard that the current will be felt in Shaheen Bagh”? The BJP lost the election. This defeat only strengthened the imperative, from the ruling party’s perspective, to break, sabotage, and communalise the anti-CAA movement. A comparison of speeches made during that period — by Umar Khalid, Sharjeel Imam, and other activists on the one hand, and by BJP leaders such as Anurag Thakur, Parvesh Verma, and Kapil Mishra on the other — clearly reveals whose words incited hatred and violence.

This writer filed complaints with the police and petitioned the courts with video evidence against these BJP leaders. Not a single FIR was registered. When Justice S Muralidhar, responding to another petition and after viewing the videos in open court, criticised the Delhi Police for their failure to register FIRs in cases of hate speech, he was transferred out soon thereafter. The message to the judiciary and the police was unambiguous.

The violence began on February 23, following Kapil Mishra’s openly provocative speech. Yet there was hardly any preventive action. On the contrary, video evidence emerged of sections of the police conniving with rioters. On February 25, the Delhi Minority Commission wrote an anguished letter to the Lieutenant Governor urging the immediate imposition of curfew. On the same day, then Chief Minister Arvind Kejriwal and Police Commissioner Amulya Patnaik flagged the grave shortage of security forces to the Home Ministry which was the authority over law and order in the Capital.

This raises unavoidable questions. Who was responsible for the low deployment of police forces? Why was the army not deployed in time? Why was curfew imposed late, and why was it restricted to only a few areas? According to official figures, 41 of the 53 people killed were Muslims, and the overwhelming majority of those whose homes, shops, and places of worship were destroyed belonged to the Muslim community. The pattern recalls disturbing parallels with earlier episodes of communal violence, where delayed or selective state action enabled mobs to operate with impunity against minorities, such as in 2002 in Gujarat when Narendra Modi was Chief Minister and Goardhan Zadaphia the State’s Home Minister.

Yet we are asked to believe that this violence was planned and executed by a group of 18 people, most of them young students. There is another dimension that cannot be ignored: the systematic demonisation of Muslim activists who opposed the CAA on secular and constitutional grounds. Of the 18 charged under UAPA, 16 are Muslims, including three Muslim women. It can hardly be a coincidence that the only two accused granted bail after spending a year and a half in jail are non-Muslims. The truth is that neither they nor any of the accused should have been booked under UAPA in the first place. It is also important to note that of the approximately 751 cases filed at the time, in case after case lower courts have slammed the Delhi Police for their shoddy investigation and their dubious witnesses. 

Fake nationalism is an intrinsic aspect of the building of an overarching Hindutva identity by the RSS and its parivar. One of its instruments is to dub every bout of communal violence the responsibility of the extremists of the minority community. Yet it is well documented through the reports of Commissions of Inquiry set up after cases of communal violence that in the majority of cases it has been found that it is the RSS and its organisations which have been responsible. Despite the widespread demand, the Modi government refused to set up such an inquiry into the 2020 communal violence in northeast Delhi. Instead, the Delhi Police did everything they could do to conceal the real chronology of the violence under the orders of the Home Ministry. These facts are well known. So why the muted response to this grave injustice? 

It is imperative for opposition parties — particularly the main opposition party, the Congress — to speak out clearly and consistently on these issues. Silence transforms injustice, more so when it has a communal colour, into routine governance. When there is hesitation to challenge unjust court orders, to oppose political persecution carried out through lawless laws like UAPA, whether in the Delhi violence cases, the Bhima Koregaon prosecutions or the NewsClick case, the ruling regime faces no real political cost for its repression, all under the pretext of “national security.” In such a political climate, even the custodial death of a Stan Swamy — caused by the sheer cruelty of denying bail and even basic facilities despite his serious health conditions — becomes normalised. 

The absence of a clear stand in cases like that of Umar Khalid and Sharjeel Imam by secular and democratic opposition parties weakens the struggle for the defence of democracy and the Constitution of India.