As feared, the Delhi High Court on October 18 rejected the bail application of Umar Khalid. The activist has been behind bars since September 2020 in connection with an alleged conspiracy related to the communal riots in the national capital in February that year.

Justice from India’s courts has become a rare exception, especially when the justice seekers are Muslims or critics of the government. Indian courts have reversed the rule of “bail and not jail” for such citizens. It requires extraordinary courage for a judge to apply this norm to them. If they do, as was done in the case of student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, the Supreme Court warned that this should not become a practice.

This explains the contradiction in the two judgements for which Justice Siddharth Mridul is responsible – one that freed Narwal, Kalita and Asif and one that denied freedom to Khalid. The context of the cases is the same: the communal riots in North East Delhi in 2020.

Looking at the proceedings that ultimately resulted in Khalid being denied liberty, one wonders if the courts have forgotten that while deciding a bail application, an individual is not to be subjected to trial. When deciding a bail plea, the judiciary only has to ensure that freedom for the accused will not interfere with the course of further investigation or trial.

All aspects of the case are not to be discussed. This is unfair because the prosecutor is allowed to level charges without needing to produce evidence, putting the defendant at great disadvantage. The prosecution keeps saying that it has evidence that will be produced at the time of trial. But that time never comes.

Meanwhile, the word of the prosecution is accepted by the court, which acts like – as advocate Guatam Bhatia has said – a “stenographer of the police”. The court appears to have forgotten its duty to guarantee that the police or the state do not deprive an individual of liberty.

If granted bail, is Khalid a flight risk? Could he influence a trial that depends on the whims and fancies of the police? Or is he fated to wait in jail for a trial based on a fantastic tale woven by the police?

The bigger picture is more terrifying.

The promptness shown by the Supreme Court on October 15 in suspending the Bombay High Court order acquitting former Delhi University professor GN Saibaba within a day shows that the judiciary does not exist to safeguard the freedom of Indian citizens, but to ensure that society loses this very sense of freedom.

In a democracy, the spirit of freedom survives only when the critics of the state are free to express their views, and remain free even after expressing such criticism.

India’s judicial system appears to be saying that it cannot tolerate the freedom of the government’s critics. The Bombay High Court made it amply clear on October 17 while rejecting the bail plea of ​​Kabir Kala Manch singer Jyoti Jagtap that no one can lampoon or criticise the government.

The rejection of Khalid’s bail petition followed this order as well. When read together, both orders demonstrate that though geographically apart there is a meeting of minds. Is this a conspiracy against democracy? Is it blasphemy to ask this question?

Yet, even after the judicial atrocity against Saibaba and Jagtap, there was a flicker of hope, an expectation that the idea of ​​justice might be still alive somewhere in the justice system. That hope was belied.

It is also clear from the reason given by the court while dismissing Khalid’s petition that logic is taking a backseat. The court agreed with the premise of Delhi Police that Khalid’s speech at Amravati in Maharashtra was responsible for provoking violence in the national capital. But where is the evidence? To reach this conclusion, the bench seized upon the word “inquilab”, or revolution, that Khalid used in his speech.

In fascinating innocence, the bench wondered why Khalid offered a revolutionary salutation in a democratic country like India. It remembered Jawaharlal Nehru who had said that revolution was superfluous in India as it was a democracy. Revolution is red. Red is the colour of blood. So, when one says “inquilab zindabad”, the court hears bloodshed.

The court felt that the women in Shaheen Bagh – a prominent site of sit-in protests against the Citizenship Amendment Act – and elsewhere decoded the command issued by Khalid in faraway Amaravati and perpetrated violence in Delhi. Going by this logic, all leaders of the Communist parties should be in jail as no meeting starts without a krantikari salaam or revolutionary salutation.

The court felt that if the word “revolution” was not prefixed with the word “bloodless”, it intended bloodshed. Since Khalid did not specify “bloodless” before “revolution”, he was definitely giving a call for violence.

Do the courts need to be reminded of the many revolutions that have taken place since the 18th century French Revolution? From the 2014 Maidan revolution in Ukraine and Armenia’s 1989 Velvet Revolution to the 2010 Arab Spring, there have been many revolutions – bloodless and involving people.

Should the courts be urged to read freedom fighter Bhagat Singh’s article on the use of the word “revolution”? Singh defends the word “revolution” saying that it does not mean pistols and bombs and that it is essentially about ideas.

Should courts be given examples of the use of the word revolution in the writings and speeches of Mohandas Gandhi, Nehru, freedom fighters Sardar Valbhbhai Patel, Sarojini Naidu and more that revolution does not mean bullets, arson or murder? Should the courts be reminded of the slogan Inquilab Zindabad or Long Live Revolution?

Suppose one were to agree with the court that Khalid’s speech is crucial in this case. Why does the court then choose to ignore those parts of the speech where Khalid asks participants to respond to violence with non-violence with the tricolour in their hands? Why is the court not convinced that Khalid was sincere when he was asking citizens to remain non-violent in the face of violence? Is it because his name is Umar Khalid?

Why does this court refuse to believe that a Hindutva leader can never mean violence, even when he openly talks of taking up arms?

The Delhi High Court’s order is a warning sign to Indian citizens. Because it says that if anyone opposes the government, they are criminals. Their protest itself is a crime.

The court feels that the anti-Citizenship Amendment Act movement was not a typical protest. What is the court’s idea of what a typical protest should look like?

What was suspicious about a movement led by women braving the harsh winters of Delhi in the winter of 2019 and early 2020? Was it suspicious because it was led primarily by Muslim women? Does the court also believe, like the Bharatiya Janata Party, that women in general and Muslim women specifically cannot have independent minds and can only be a cover for violent men?

The real tragedy, made clear from the police investigation, is that the Delhi Police are not interested in finding out the real cause of the riots in the national capital nor bringing the perpetrators to book. The Delhi Police believe the protest against the Citizenship Amendment Act was a criminal act, a conspiracy against the country. Everyone associated with the protest is deemed a conspirator or someone involved in violence.

The police have been asked time and again, and that too by one of the judges of this court, why no case was filed against BJP leaders who threatened violence. On October 11, BJP legislator Nand Kishor Gurjar alluded to his involvement in the riots, though he later claimed his remarks had been misinterpreted. Has he been questioned?

Umar Khalid’s only crime is that his name is Umar Khalid, and that he had the audacity to question the government as Umar Khalid.

Apoorvanand teaches Hindi in Delhi University.