On Denial Of Bail To Umar Khalid, Harish Salve Said "Context" Matters

The denial of bail to activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case is very different kettle of fish from ordinary, everyday crimes for which bail and not jail, is the law, former Solicitor General of India Harish Salve has said. In an exclusive interview with NDTV's Vasudha Venugopal, Salve said though he is yet to go through the finer details of the case, all accused are not equal and in this case, the context is very important. 

Citing UAPA, under which the former JNU student and activist has been accused, Salve said there are a number of statutes in which bail is not the rule.  "Bail is the exception, jail is the rule... The UAPA has provisions, the drug law, the anti-drug law has provisions like that," he said. 

Read: Liberty Not Absolute, Linked To Society's Security: Top Court In Umar Khalid Case

Asked about the fact that the two have already been in jail for five years when the trial against them has not started, Salve said while "unconscionable delay" in commencement of a trial is crucial, it is "quite another matter where three courts have now found that the delay was at the door of the accused".

"Many times accused are in no daring hurry to get on with the trial... Many times you don't want to go on, you don't want to go on with framing the charges, you want to see what happens, etc," he said, clarifying that the blanket term for this is "forensic ploys".

"So if those are the things which are in play and which have caused the delay, then this principle of prolonged incarceration doesn't apply," he said. "So speedy justice is a rule under Article 21, but many times, if there is absence, if there is no judge present, if the judge has gone missing, if the prosecution is not showing up, those are cases of extended incarceration," he added.  

Riots had broken out in northeast Delhi on February 24, 2020, during the protests against the Citizenship (Amendment) Act (CAA) and the National Register of Citizens (NRC), leaving more than 50 people dead. Imam was arrested days before -- on January 28, 2020 -- for speeches made during the anti-CAA protests. Khalid was arrested on September 13, the same year. 

Read: Umar Khalid, Sharjeel Imam Denied Bail. What Is 2020 Delhi Riots Case

Salve's word summed up much of what the Supreme Court said while delivering its verdict on the bail applications of Khalid and Imam. Denying them bail - which was granted to five other accused, the court pointed out that there are degrees of involvement.

"Those alleged to have conceived, directed, or steered unlawful activity or terrorist activity stand on a different legal footing from those whose alleged involvement is confined to facilitation or participation at a different level. To disregard such distinctions would itself result in arbitrariness," the court had said.

The bench of Justices Aravind Kumar and NV Anjaria also said a delay in trial is not a "trump card" that can be used to displace statutory safeguards. "The Constitution guarantees personal liberty, but it does not conceive liberty as an isolated or absolute entitlement, detached from the security of the society," the judges said. 

Read: What Supreme Court Said Denying Bail To Umar Khalid, Sharjeel Imam

Pointing out that context, especially societal context, matters, Salve said the court has said the allegations against Khalid and Shami are not just about their speeches. 

"It is a course of conduct. The speeches were a part of the overall course of conduct. And the course of conduct was clearly within the meaning of the unlawful acts. Sedition is a side issue here.  It's terrorism within the meaning of the unlawful act," he added.

Asked how fair riot trials in India can truly be, in view of the deeply polarized views, Salve said courts are only concerned with evidence.

"Today one can debate anything...  There are people who justify going into another person's, going into another country, grabbing their president, putting him in handcuffs and bringing him in... I want my India to be safe. I want my India not to suffer... We have failed states all around us. We don't want to go down that road," he added.