‘Different footing’: Why Umar Khalid, Sharjeel Imam were denied bail by Supreme Court

In the judgment, the bench drew a doctrinal line between conceptual orchestration and on-ground execution.

The Supreme Court’s refusal to grant bail to student activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case rests on a key judicial finding that the prosecution material, taken at face value, places the two on a “qualitatively different footing” from other accused, attributing to them “central”, “formative” and “strategic” roles in the alleged conspiracy rather than local or episodic participation.

According to the bench, the FIR and successive charge sheets consistently portray Khalid and Imam as ideological drivers and coordinators of the alleged plot, operating at the level of planning, mobilisation and strategic direction from December 2019 onwards, immediately after the passage of the Citizenship Amendment Act (CAA).(PTI)

In a detailed judgment running into 142 pages, the bench of justices Aravind Kumar and NV Anjaria drew a doctrinal line between conceptual orchestration and on-ground execution, holding that bail under the Unlawful Activities (Prevention) Act (UAPA) must turn on role differentiation, hierarchy of participation and statutory thresholds, not on parity or length of incarceration alone.

Central vs subsidiary roles

At the core of the ruling is the court’s acceptance of the prosecution’s structured narrative of the conspiracy to decide bail under UAPA. According to the bench, the FIR and successive charge sheets consistently portray Khalid and Imam as ideological drivers and coordinators of the alleged plot, operating at the level of planning, mobilisation and strategic direction from December 2019 onwards, immediately after the passage of the Citizenship Amendment Act (CAA).

The remaining accused, by contrast, were described as local-level facilitators, whose alleged roles were confined to specific protest sites such as Seelampur, Jafrabad, Chand Bagh, Jamia and Shaheen Bagh, involving logistical arrangements, crowd mobilisation and execution of directions received from above.

This differentiation, the court stressed, was not incidental but embedded in the prosecution’s own case structure, revealing what it termed a vertical chain of command, with decisions flowing downward and implementation occurring through intermediaries such as protest coordinators and site organisers.

Denying bail to Imam, the court held, “The prosecution material, taken at face value, does not depict the appellant as an accidental or peripheral participant. It depicts him as a coordinator and mobiliser at the inception and in the first phase…The court accordingly finds that the prosecution material, read cumulatively and taken at face value, discloses reasonable grounds for believing that the accusations against the appellant are prima facie true.”

Similarly, for Khalid, the court said, “The role attributed to Umar Khalid is not of a late entrant nor of a peripheral sympathiser. It is that of an organiser and coordinator who, according to the prosecution, supplied the ‘method’, the ‘timing’, and the ‘linkage’ between dispersed sites and actors,” it noted.

Planning, not presence, is crucial

Another key reason for denying bail was the court’s rejection of the argument that absence from riot sites or lack of direct participation in violence is determinative in a conspiracy prosecution. Neither Khalid nor Imam is accused of committing acts of arson or assault. But the court held that this does not weaken the prosecution case at the bail stage, because the alleged role attributed to them is foundational rather than executory.

“In a phased conspiracy,” the court observed, physical presence at the site of violence is not a condition precedent for criminal liability. What matters is whether the accused is linked, prima facie, to the design, preparation and orchestration that allegedly culminated in violence.

“The law does not require the prosecution to demonstrate, at the bail stage, that the accused personally caused death or destruction, or personally stocked explosives...It requires the court to see whether the material discloses a prima facie case of involvement in the unlawful activity alleged,” held the bench.

Referring to the prosecution’s contention that escalation into violence was not incidental but contemplated, the bench noted that the appellant’s absence from the riot scene therefore does not end the inquiry but the inquiry shifts to whether the prosecution material prima facie links them to the strategy that was executed when the “right time” arrived.

“At this stage, the charge sheet narrative and the protected witness statements relied upon are pressed to show that the appellant was engaged at earlier phases in shaping the method and expanding the sites, and that preparatory discussions in January (2020) included alleged directions for stockpiling and readiness for escalation. The court cannot pronounce on their truth. It can, however, record that such material, if accepted as the prosecution places it, links the appellant to the alleged design and the timing of its culmination,” it said.

According to the bench, the absence argument cannot be treated as exculpatory at the present stage. “It is a matter to be tested at trial in the light of complete evidence. The bail stage enquiry cannot be converted into a determination that once the appellant is not physically present during the February riots, his earlier attributed role becomes legally irrelevant,” it added.

From protest to ‘chakka jam’ strategy

The court placed considerable emphasis on the prosecution’s claim that the agitation evolved from conventional sit-in protests into a deliberate strategy of sustained “chakka jams” — blocking arterial roads, paralysing civic life and choking essential services.

In Imam’s case, the court noted material alleging his involvement in mobilisation platforms, pamphleteering, meetings, WhatsApp groups and speeches, tracing a continuous course of conduct from early December 2019 to January 2020. A protected witness statement, relied upon by the prosecution, attributes to Khalid the act of explaining the distinction between a ‘dharna’ and a ‘chakka jam’, and issuing directions to commence round-the-clock blockades at Shaheen Bagh with plans to expand to other locations “at the right time”.

Taken at face value, as the law requires at the bail stage, the court held that this material supports an allegation of planned and differentiated disruption, not spontaneous protest.

“The prosecution case, taken cumulatively, pleads precisely this: That the blockade strategy was designed not merely to inconvenience, but to provoke, to polarise, and to create a breakdown of communal peace. Where such an allegation is supported, at least prima facie, by statements, chronology, and alleged coordination, the court cannot trivialise it as an inevitable by-product of protest,” it said.

It went on to note that the prosecution material, read cumulatively and taken at face value, discloses reasonable grounds for believing that the accusations against the Imam are prima facie true”. The material relied upon is not confined to abstract ideology. It comprises digital coordination, attribution of planning and mobilisation, presence supported by location records, a protected witness statement describing differentiated chakka jam strategy, and speech material exhorting disruption and choking of essential services,” it held.

Speech not examined in isolation

While acknowledging that much of the material against both accused relates to speeches and protest-related activity, the court refused to examine speech in isolation. It held that the prosecution case is not founded on ideological dissent or criticism of the State, but on an alleged chain of conduct comprising coordination, mobilisation, planning and public exhortation aimed at paralysing civic life.

Whether the speeches ultimately cross the line from protected expression to criminal conduct is a matter for trial, the court clarified. At the bail stage, the question is narrower: Whether the prosecution’s interpretation is prima facie plausible when read cumulatively with other material.

It also rejected Imam’s argument that the prosecution’s case rests solely on certain speeches he delivered in Delhi, West Bengal and Bihar. “The prosecution material, as presently placed, alleges a combination of organisational acts, coordination through digital groups, meetings and differentiated strategy of chakka jam and blockade…At the bail stage, the court is concerned with whether this chain, taken at face value, is coherent and whether it reflects a real nexus to the offences alleged,” it said.

Similarly, it dismissed Khalid’s argument that the only overt act attributed to him was a public speech delivered at Amravati on February 17, 2020 even though it did not exhort violence, destruction of property, or unlawful action.

But the bench said that the speech, in isolation, cannot decide the case. “Equally, the speech cannot be extracted from the timeline and used as a complete answer to allegations of meetings, directions, and preparatory acts alleged over months. The court therefore treats the speech as one circumstance in a chain, to be evaluated with other material, not as a standalone verdict of innocence or guilt,” it noted.

Why parity and delay did not help

The plea of parity with co-accused who were granted bail was rejected on the ground that parity is role-specific, not numerical. Bail jurisprudence under UAPA, the court said, does not permit mechanical comparison where the prosecution attributes distinct degrees of control and participation.

On prolonged incarceration, the court acknowledged the constitutional concern but held that delay cannot operate as a “trump card” to override the statutory embargo under Section 43(D)(5) of UAPA once the prima facie threshold is crossed. The remedy, it said, lies in judicial supervision and expedition of trial, not in diluting the statutory standard at the bail stage.

Unlike ordinary cases, UAPA requires courts to refuse bail once the accusations seem prima facie credible, without weighing evidence. The provision effectively shifts the burden onto the accused to disprove the prosecution’s prima facie case. This contrasts sharply with regular bail provisions where the accused is presumed innocent until proven guilty.

In the present case, ultimately, the denial of bail turned on the court’s conclusion that the prosecution material discloses reasonable grounds for believing that the accusations are prima facie true, thereby triggering the statutory bar under Section 43(D)(5).

Once that threshold is crossed, the court held, bail ceases to be a matter of discretionary balancing and becomes legally impermissible, unless continued incarceration reaches the level of constitutional breakdown -- a threshold the court found was not crossed in the present case.

At the same time, the court underscored that statutory restraint cannot translate into indefinite detention. Recognising the reliance on protected witnesses and the scale of the trial, it permitted Khalid and Imam to renew their bail pleas after the examination of protected witnesses or one year, whichever is earlier. All observations, the court clarified, are confined strictly to the bail stage and will not influence the trial on merits.