How Denial of Bail to Umar Khalid Shatters Hope of Many Others

In April, hope began to ripple among all those whose relatives had been incarcerated under the Unlawful Activities (Prevention) Act for conspiring to foment the riots in Northeast Delhi in February 2020. The reason: Justice Rajnish Bhatnagar and Justice Siddharth Mridul, of the Delhi High Court, were to begin hearing student leader Umar Khalid’s bail plea. They rated as high the chances of Umar securing his freedom. Such an outcome would, they believed, also smoothen the path to freedom for their relatives festering in jail since 2020.

Their optimism was spawned by the presence of Justice Mridul on the two-member bench hearing Umar’s bail application, for it was he and Justice Anup Kumar Bhambhani who had granted bail to Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita in 2021. The three, like Umar, are among the accused in the Delhi riot conspiracy case, aka FIR 59/2020.

Authored by Justice Bhambhani, the 2021 judgement releasing the trio was hailed for expanding the jurisprudence of liberty—and skirting around the stringent bail provisions of the UAPA. The relatives of the accused thought Justice Mridul would not go against his own 2021 judgement—and deny bail to Umar.

The ripple of hope in them turned into a tide as soon as it became known on the evening of 17 October that the two-member bench would deliver their judgement on Umar’s fate the following day. Some of them became so restless at the news that they found it hard to eat or sleep. On 18 October, Justice Bhatnagar took just a few seconds to declare that Umar’s bail application had been dismissed. The relatives of those festering in prison were sucked into the darkled world of pessimism, even hopelessness.

Students of law would say their hope rested on quicksand, given the history of inconsistency in judicial pronouncements in India. But even legal scholars were bewildered over the denial of bail to Umar. For instance, Gautam Bhatia, in his piece Forgetting the Basics: The Bail Orders in Jyoti Jagtap and Umar Khalid’s Cases, notes, “Under even the loosest standards of intellectual consistency, it is simply inexplicable how the same Learned Justice [Mridul] can—without further explanation—be party to two jail judgements that not only arose out of the same set of facts, but took polar opposite approaches to the issue.” Bhatia’s analysis can be read here.

Aware of the hope they had pinned on Umar’s bail application, I spoke to eight of those whose relatives are incarcerated in the same case in which Umar, too, is. Meeran Haider’s father Shabul Hassan was the most succinct among them: “I am very, very sad that Umar was denied bail.”

The other seven were, however, vivid in describing their feelings, as if the mere act of articulating their disappointment brought relief to them. Almost all of them accepted that Justice Mridul’s presence on the two-member bench was to their emotions what the full moon is to the sea, turning the ripple of hope in them into a tide. And now, with the tide of hope receding, they find their disappointment hard to bear. Here is the account of the seven I spoke to.

Banojyotsna Lahiri,

Friend of Umar Khalid

On 18 October, Banojyotsna and her friends decided to watch together the court proceedings online. They saw Justice Rajnish Bhatnagar enter the court and declare that he did not find any merit in Umar’s bail application. Some of her friends broke down. “My problem is I cannot cry before anyone,” says Banojyotsna.

She had been on an emotional see-saw from the time the Delhi High Court began hearing Umar’s application. Her hope soared at the news that Justice Siddharth Mridul would be on the bench. Weeks later, doubts began to creep into her mind as the bench took to reading dark meanings into the word revolution and expressing their distaste for Umar’s punchy criticism against Prime Minister Narendra Modi.

Her hope shrivelled as the judges took to analysing the speech Umar had delivered at Amravati, Maharashtra, in February 2020. Words and phrases such as Inquilab (Revolution), Inquilabi Salam (Revolutionary Salute) and Krantikari Istiqbal (Revolutionary Welcome) were dissected to decode a murderous intent. Mind you, neither the prosecution nor the Sessions Court, which had earlier denied bail to Umar, had ventured into a linguistic analysis.

“In that speech, Umar spoke of non-violence and the Gandhian idea of satyagraha. These aspects of the speech were simply ignored,” she says ruefully.

As the denial of bail to Umar began to gradually sink into her, she thought she was slipping into the abyss of depression. In the evening, Umar called from Tihar. He said his shock and dismay had lasted for only 30 minutes. “Frankly, I was getting very emotional. But because he was being so strong, I decided I have to be strong for him,” she says.

Umar, obviously, will go in appeal to the Supreme Court. And once again, Banojyotsna will learn to hope. Must be hard this roller-coaster life—hope born, hope dashed, hope resurrected…? “But this is what the fight against fascism has always been like,” Banojyotsna says.

Muzzammil Imam,

Brother of Sharjeel Imam

In Patna, Muzzammil bubbled with such optimism on the evening of 17 October that he thought to boost his mother’s mood. Muzzammil told his mother, “Bhai [Sharjeel Imam] will be out of jail soon, Inshallah [God willing].” His mother replied, “Do you think they will give him bail?”

He, too, said his optimism sprang from the presence of Justice Mridul on the bench. Muzzammil explained to his mother that Justice Mridul was party to granting bail to Asif, Natasha and Devangana, who are accused in the same case as Sharjeel and Umar also are. “How can he grant bail to the three and deny to the other two,” he confidently told his mother.

The denial of bail to Umar crushed Muzzammil’s optimism. “I was filled with sadness, for my brother and others, for it makes so much more difficult for them to get bail now,” he says.

His sadness turned into disbelief, even anger, as he read the judgement rejecting Umar’s bail application. The judgement says, “…The appellant [Umar] was in constant touch with other co-accused persons, including Sharjeel Imam, who arguably is at the head of the conspiracy.” At another place, Sharjeel is referred to as the “main conspirator”. Sharjeel is mentioned as many as 17 times in the judgement.

“He has been called the main conspirator without even being given a chance to defend himself,” says Muzzammil. It also implied that it was perhaps futile to argue for bail before the same bench. Sharjeel and his lawyers sought adjournment from the High Court, where his bail application was due for hearing this month, and now plan to challenge Umar’s bail order in the Supreme Court.

So it is that mother and brother’s wait for Sharjeel’s release will get prolonged. In Tihar, Sharjeel is patience personified, evident from what he told his mother in a telephonic conversation, “Ammi, they have already kept us in jail for two years. How much longer would they want to deny us our freedom?” For the record, though, there are instances of UAPA undertrials having spent many years in jail before they were exonerated. So much for India’s justice system!

Nargis,

Wife of Khalid Saifi

Nargis was so restless the day before the judgement on Umar’s bail was due that she could not eat or sleep. She tracked the 18 October proceedings in the Delhi High Court via Live Law tweets. Tears began to flow from her eyes as soon as she read the verdict. “Umar is like a younger brother to me,” Nargis says. Her husband Khalid Saifi and Umar had worked together in the United Against Hate, a civil society group formed to challenge Hindutva’s demonisation of Muslims.

Nargis, too, drew hope from Justice Mridul’s presence on the bench, acutely aware that the verdict on Umar would determine, to a great extent, the chances of her husband securing bail. But this was not the only reason for her breaking down. “All the relatives of the accused meet during court hearings. Bonds forged in sorrow are always more enduring,” Nargis says, adding, “All of us had high hopes that Umar would get bail.”

In her optimism, Nargis had told her three children that Umar would get bail and their father would, as a result, soon return from jail. The children asked, “Now what? How long now for Abbu to return?” She mumbled to them to keep faith in Allah.

Nargis spoke to Khalid, who told her that the other UAPA accused in Delhi ‘s Mandoli Jail had turned pessimistic on hearing the news about Umar. “He looked strong, brave. But I know what he must be feeling.” That he would be missing her and the children, that he would be missing the life of freedom, and that he must endure the Kafkaesque world being constructed, with every passing day, in Modi’s new India.

Najmuddin,

Uncle of Athar Khan

Najmuddin, as is typical of social activists, cuts to the chase: “How could Justice Mridul turn against his own order that he and Justice Bhambhani delivered last year. He should have dissented, turned the judgment into a split one, as had recently happened with the hijab case in the Supreme Court.”

Najmuddin could not sleep through the night of 18-19 October, and received as many as 50 calls from his sister—Athar Khan’s mother. She kept asking him whether there still existed the possibility of her son walking out of jail, into freedom. And then, on the 50th call, she broke down, with only the sound of her sobs echoing over his mobile.

Najmuddin has not had the courage to meet his sister face-to-face, preferring to inquire about her well-being through her other children. One of them told Najmuddin that Athar had called from jail, but she refused to speak to him, apprehensive she would melt into tears on hearing his voice. At her refusal to come on the line, Athar told his brother, “When I came to know that Umar had been denied bail, I knew Ammi would not speak to me for a long time.”

UAPA is, indeed, the knife the State has designed to slash familial bonds.

Fehmida,

Wife of Tasleem Ahmed

A day before Umar’s bail order was due, Fehmida felt a sense of relief coursing through her body. For well over two years, her husband Tasleem Ahmed has been in prison. “These two years were like being locked in a pitch-dark room. The news that the judgement on Umar’s bail would be pronounced on 18 October seemed like a beam of light entering through the ventilator of the pitch-dark room.”

Fehmida was so sure Umar would get bail that she even told her two children about why 18 October was to be their Big Day: “Umar uncle will get bail, then your Abbu will soon be back, too.” Her seven-year-old daughter Sara whooped in delight.

At the news that Umar had been denied bail, the “ventilator of the pitch-dark room” seemed to have been walled immediately. Tears welled up in her eyes. It was not just because the rejection of Umar’s bail application would impinge on her husband’s fate as well. “We, the relatives of the accused, have strong feelings for each other. They have given me so much strength in all these months of living alone,” she says.

The children were sorely disappointed at Umar uncle being denied bail. “When will Abbu come,” Sara asked. And Fehmida replied, “Soon. Pray he does.” What can Fehmida do other than hope for a new dawn? “It is impossible to bear pain without hope,” she says.

Tasneef Hussain,

Father of Gulfisha Fatima

It can be advantageous to not be knowledgeable of legal matters. Take Tasneef Hussain, who was unaware that Justice Mridul was one of the two judges who had granted bail to Asif, Natasha and Devangana. And so, the bug of hope did not bite him. Tasneef says he always had doubts Umar getting bail.

Tasneef was diagnosed with depression long before Gulfisha was incarcerated. He takes tranquillisers to sleep. And he does his best to wrench himself away from troubling thoughts. That is why he has not pondered over the implications of Umar’s case for his daughter Gulfisha. “All my tears cannot get my daughter back to me. Nor her tears will win her freedom,” Tasneef says in his rasping voice.

When I explain to him why the presence of Justice Mridul had bolstered the hope of many, Tasneef responds, “You do know about the lawyer who is bigger than all lawyers, the judge who towers over even the best of Supreme Court judges. It is Allah. All of us are his toys.”

In the divine game that is life, que sera, sera—what will be, will be—might just be the best way to negotiate disappointments.

Shamshad Ahmad,

Father of Shadab Ahmad

Shamshad Ahmad was following Umar’s case from Bijnor, Uttar Pradesh, where he lives. A political activist who was associated with the Bahujan Samaj Party for many years, Shamshad knows the denial of bail to Umar might just mean a longer spell in jail for Shadab as well.

“Everything with this case is wrong,” Shamshad says. He cites his reasons—false charges were pressed against the accused; there is no evidence of their role in the violence; the evidence listed against them in the charge-sheet are all cooked up. Shamshad contrasts these with the recent trends in India: “Those who openly speak of genocide, those MPs who publicly threaten violence, they have their freedom. The State does not imprison those against whom there is evidence. In fact, the government has freed those who were convicted in the Bilkis Bano case.”

Shamshad, in other words, is pointing to the double standard of the Indian State. What, though, remains inexplicable to them is Justice Mridul’s contradictory judgements in the same case, shattering their hopes and denying them the slice of life they could have shared with the accused, who suffer alone in jail, with none to whisper into their ears that bewitching word without which it is impossible for most human to live—HOPE.

The author is an independent journalist. The view are personal.