India’s Supreme Court on January 5 denied bail to prominent student activists Umar Khalid and Sharjeel Imam, who have been detained without trial for over five years. The court granted bail to five others arrested in the same case, holding that Khalid and Imam stood on “qualitatively different footing.”
The authorities arrested the 7 along with 11 other activists in 2020 under the Unlawful Activities (Prevention) Act, India’s abusive counterterrorism law, in connection with communal violence that broke out in Delhi that year between supporters and opponents of the 2019 Citizenship Amendment Act, which discriminates against Muslim irregular migrants seeking citizenship. The violence left 53 dead and hundreds injured, most of them Muslim.
The International Covenant on Civil and Political Rights as a general rule encourages release, including bail, for those in pretrial custody. The prosecution has presented no evidence, such as calls for violence, that would warrant pretrial detention. The case relies heavily on anonymous witnesses and WhatsApp chats in which participants discuss organizing peaceful protests the police have presented as evidence of complicity in a larger conspiracy to instigate riots. The Supreme Court, in denying bail to Khalid and Imam, held that “terrorist acts” should not be interpreted narrowly to include only acts of violence, but should encompass broader actions that disrupt the economy.
A July 2020 report by the independent Delhi Minorities Commission found the violence in Delhi was “planned and targeted,” and that the police were filing cases against Muslim victims of the violence, while not taking action against the ruling Bharatiya Janata Party leaders who incited it. Human Rights Watch and others have also documented clear bias by the authorities in the investigations, arresting peaceful protesters and accusing them of a “conspiracy” to “defame the country in the international arena.”
Over the years, several United Nations human rights experts have called for the immediate release of these activists.
In recent years, India’s courts have repeatedly denied bail to activists arrested under the counterterrorism law despite ample evidence that the law is being used to target peaceful protesters and critics of the government. The Supreme Court’s decision to keep Khalid and Imam for at least another year in jail without trial undercuts its repeated emphasis on bail as a fundamental right, and will have a chilling effect on rights to freedom of expression, association, and peaceful assembly.
