On 5 January 2026, the Supreme Court delivered its first substantive order in the so-called ‘Delhi riots conspiracy case’ of FIR 59/2020 under UAPA, to grant bail to five (Gulfisha Fatima, Shifa ur Rehman, Meeran Haider, Md Saleem Khan and Shadab Ahmad) and reject the bail of two (Umar Khalid and Sharjeel Imam). Out of the eighteen persons implicated in the FIR, apart from Umar Khalid and Sharjeel Imam, only four remain in custody: Khalid Saifi and Athar Khan (who did not appeal the 2 September order), Tasleem Ahmad (denied bail by an order of 2 September by a separate bench of the Delhi High Court and not appealed) and Saleem Malik (withdrew his bail plea from the Supreme Court in May 2024).
After close to six years, the release of five persons by this bail order is a substantial relief to them, their families and friends. However, the Supreme Court’s order is of serious concern, as it endorses the continued persecution of the citizenship rights movement on fabricated terror allegations.
By all accounts – except for that of the Delhi Police – the events of December 2019 to March 2020 witnessed mass democratic mobilizations to demand the withdrawal of the Citizenship Amendment Act, a patently unconstitutional legislation that tethered the right to citizenship with religious identity. The movement was eventually disrupted through communal riots across north-east Delhi that resulted in the deaths of at least 53 persons, arson, and displacement of religious minorities from their homes and livelihoods. Instead of initiating criminal action against Kapil Mishra, Anurag Thakur and Ragini Tiwari, who were recorded as delivering virulent hate speeches against the citizenship rights movement in the presence of senior officials of the Delhi Police, the State has framed the very victims of the mass violence as the perpetrators of a fabricated ‘terror conspiracy’. The claim of the State is that a larger conspiracy to commit terrorist acts – beginning from December 2019 – was in place that culminated in the violence of end February 2020.
Following the arrests of anti-CAA protestors – students, activists and volunteers – and those not associated with the protests at all, the fight for narrative has shifted to the courts where the UAPA and its interpretation has been front and center. Not only does the 5 January order fail to hold the State to account through a scrutiny of allegations against the accused, but it in fact, contrives judicial precedent to justify the continued incarceration of Umar Khalid and Sharjeel Imam against established jurisprudence under the UAPA.
First, the Supreme Court dilutes its own 3-judge bench decision in KA Najeeb, which mandated bail in cases of prolonged incarceration under UAPA on the strength of Article 21 of the Constitution. The Court moves away from this principle on grounds of UAPA being a special statute, ignoring that Najeeb was delivered under the UAPA itself and already accounted for its character as a special statute concerned with national security. Instead, the Supreme Court sets up competing principles of the alleged role of accused as ‘masterminds’ and ‘architects’ of the conspiracy to trump Article 21 violations in their prolonged pre-trial detention.
Second, the Supreme Court walks back on its own precedent in Vernon Gonsalves, which held that in determining the existence of a prima facie case to deny bail under UAPA, courts are empowered to look into the probative value or patent inadmissibility of prosecutorial materials. In the order of 5 January 2026, the Supreme Court states: “the inquiry is one of statutory plausibility, not evidentiary sufficiency”.
Third, the Court found that the definition of terrorist act under Section 15 of UAPA is not to be limited to only “conventional modes of violence” or “immediate physical violence” but is broader in light of the phrase “by any other means of whatever nature” used in the section. What was the reason for the Court to briefly allude to this definitional question? The case of the accused seeking bail was that a protest was being construed as a terrorist act. Speech and organizing around issues cannot be considered terrorism. In a few paragraphs – that will require further scrutiny and debate in a statute riddled with vagueness already – the Court has essentially evaded the fundamental question raised by the accused from the beginning: should UAPA even apply? Why are the eighteen accused persons being set up in a terror case – as opposed to the individual cases relating to violence and destruction of property that some of them are already facing? The very application of UAPA is suspect and appears politically motivated and a method to ensure further incarceration. Rather than merely deal with the question of interpretation in a few abstract paragraphs, the Court ought to have applied the existing jurisprudence that there must be strict scrutiny on the application of terror laws.
Fourth, stringent bail conditions are imposed. Three conditions may be highlighted for their complete overreach and curtailment of the rights of the accused now granted bail. The Court sets onerous requirements for sureties, demanding two local sureties for Rs.2,00,000/- each, in opposition to existing statutory and judicial mandates that surety amounts must not be prohibitive. Condition (vi) bars the accused from associating with any group or organization “linked” to this case, Condition (viii) bars the accused from participating or attending any programme/meeting/rally/gathering AND condition (ix) bars the accused from circulating any post, poster etc. In effect, the accused are barred from any social or political activities – rights that those presumed innocent must fully enjoy AND through bail conditions the groups / organizations named by the investigating agency (none of which are proscribed unlawful associations or terrorist organizations) stand isolated and on notice.
PUDR notes that except for relief to the five persons granted bail, the order of the Supreme Court serves the political interests of a State that favours persecution over prosecution.
Deepika Tandon and Shahana Bhattacharya
(Secretaries)
pudr@pudr.org
