‘Five years without trial is unjust’: JLF panel debates Umar Khalid bail case

“The elephant in the room is not Umar or Sharjeel,” she said. “There are many such cases. The elephant in the room is the abuse of power and the weaponisation of criminal law by the state.”

Grover referred to journalists and human rights activists in Kashmir who, she said, remain in custody or have been transferred to prisons in different parts of the country. She argued that the use of terror law in cases involving dissent was not confined to the Delhi riots cases.

She also stressed that neither Khalid nor Imam was accused of committing any act of violence. “It is nobody’s case that Umar or Sharjeel… have ever indulged in a singular act of violence,” she said. “What is the problem? Their ideas. Their thoughts.”

Grover questioned the reasoning in the bail judgment, particularly its reference to speeches that were said to have “destabilised civic life”.

“We are talking about an act of terrorism across the world,” Grover said. “What is a terrorist act has always been debated. But to take terrorism outside the purview of violence altogether – this is extremely dangerous.”

Referring to constitutional jurisprudence, Grover said Indian courts have historically distinguished between protected and prohibited speech. “You cross that line when there is incitement to violence and incitement to imminent violence,” she said. “Please read the judgment. Where is the link between the speeches of these young student leaders and the violence that happened in Delhi?”

In the absence of such a link, she said, speech must remain protected. “That judgment is not about Umar and Sharjeel,” Grover said. “It is about us. It is about our democracy.”

Ashwani Kumar followed with remarks on prolonged pre-trial detention, describing it as “patently unjust”.  “There is absolutely no reason to deny bail to two people for more than five years without the trial having even commenced.”

Such detention, Kumar argued, violated both criminal justice principles and constitutional values. “It militates against the first principles not only of the criminal justice system,” he said, “but also against the first principles of a dignitarian democracy.”

Kumar described Indian democracy as one that rests on dignity as much as liberty. “It is anchored in freedom, liberty, the right to free speech, inclusion and plurality,” he said, adding that prolonged incarceration without trial undermines each of these pillars.

Grover also drew attention to cases that, she said, were not pursued by the criminal justice system. “We talk of the cases that are lodged,” she said. “But sometimes it is the omissions that are equally important.”

She referred to instances of alleged hate speech and incitement during the 2020 Delhi violence that, she said, were never acted upon. “You have today a criminal legal system,” she argued, “that has been totally distorted and controlled.”

Kumar echoed concerns about fairness in the legal process, criticising public commentary by political leaders on pending criminal cases. He said such remarks create perceptions of guilt and violate the right to a fair trial, which the Supreme Court has recognised as part of the Constitution’s basic structure.

Judicial review and the limits of restraint

Kumar spoke about the role of judicial review within India’s constitutional framework, describing it as a safeguard that has been recognised as part of the Constitution’s basic structure.

He also referred to the need for restraint in the exercise of judicial power. “Judicial review must be a restrained exercise of judicial power,” he said, adding that persistent conflict between the judiciary and Parliament could lead to a “disharmonious construct” among the organs of the state.

At the same time, Kumar said restraint should not translate into passivity, particularly in matters concerning personal liberty. Courts, he said, must not be “disdainful of democratic politics,” but neither can they abdicate their role as constitutional guardians.

‘Judges are human’

Judge Ketu Shah offered a comparative perspective from the United States. “Judges are human beings,” he said. “We make mistakes. We strive to be neutral and fair and unbiased. Sometimes we meet that measure, and sometimes we don’t.”

Shah cited the 1923 US Supreme Court decision denying citizenship to Bhagat Singh Thind, an Indian-origin World War I veteran, on racial grounds. The ruling, later reversed in spirit if not in time, reflected the prejudices of its era.

“That interpretation obviously changed over time,” he said, noting that Thind was eventually granted citizenship. “The good news is, the law does evolve, but often after injustice has already occurred.”

Criminal law reform and the question of accountability

The panel also discussed the Bharatiya Nyaya Sanhita, which replaced the Indian Penal Code last year. While introduced as a decolonising reform, Grover questioned whether it meaningfully advanced constitutional freedoms.

“Was the law decolonised?” she asked, pointing to continued immunities for public servants, the expansion of speech-related offences, and the failure to criminalise torture. “Where is the decolonisation?” she asked.

On the issue of torture, Grover asked why India still does not have a specific law making it a criminal offence. Kumar responded by recalling that he had chaired a parliamentary committee that proposed an anti-torture law, which was never enacted. A petition he later filed in the Supreme Court on the issue, he said, remains pending.