Justice Deepak Gupta on Umar Khalid

In January, the Supreme Court refused to give bail to Umar Khalid & Sharjeel Imam. Why?

 According to the prosecution, the conspiracy culminated in the deliberate incitement of widespread communal violence on and around 22nd, 23rd, and 24th February 2020. The acts allegedly committed during this period were not spontaneous but were the outcome of coordinated efforts to inflame tensions, mobilise crowds, and execute violent actions across various parts of Delhi. 13. The riots are stated to have resulted in grave consequences, including the loss of 54 lives, among them a senior police officer and an Intelligence Bureau official, as well as grievous injuries to several police personnel and civilians. In addition, extensive damage was caused to over 1,500 public and private properties, alongside substantial intangible harm to public order, social harmony, and the nation at large.

In other words, prima facie, both men were ringleaders of a conspiracy which falls squarely under the rubric of the Unlawful Activities Prevention Act. No bail can be granted.

A former Supreme Court Judge, Deepak Gupta, has written an article in the Tribune which is summarised as follows by Maktoob media.

Former Supreme Court judge Justice Deepak Gupta criticised the judiciary’s failure to protect individual liberty, citing rights activist Umar Khalid’s prolonged incarceration and the Elgar Parishad case, and said “the process has become the punishment” as people are labelled “anti-nationals” and their lives ruined.

The alternative would be to let the majority community slaughter the minority community in the name of 'individual liberty'.  

He questioned why, “if the allegations were as serious as claimed,” the prosecution had not shown the same urgency in starting the trial.

Because the troublemakers were already in jail. The problem with UAPA is that bail is not given if there is a prima facie case- i.e. the prosecution's claim is plausible.  

Gupta said that “the process has become the punishment”, arguing that people are condemned and their lives ruined by being labelled “anti-nationals”, while courts have failed to protect their fundamental rights.

Both Umar Khalid and Sharjeel Imam want India to give up Kashmir. This is secessionism and is 'anti-national'. It is criminalised by Section 152 of the BNS (Indian Penal Code). There is no 'fundamental right' to acting in a way which  "endangers the sovereignty, unity, and integrity of India." It explicitly criminalizes anyone who purposely or knowingly excites or attempts to excite secession, armed rebellion, or subversive activities, or encourages feelings of separatist activities. [1, 2]

Writing in The Tribune in an article titled “The True Meaning of Freedom”, Gupta argued that independence is not merely freedom from foreign rule but also means that citizens should be able to “think and speak without fear”, express dissent and receive equal treatment regardless of caste or religion.

Is Gupta calling for the repeal of section 152 as well as the UAPA? Does he deny the freedom of the elected legislature to make laws which punish secessionist activities more particularly of a violent type? 

That may be the true meaning of freedom for Gupta. Yet he chose to remain in India where no such thing has ever obtained. 

He said India can be truly independent only when it gets rid of “corruption, bias, bigotry and intolerance.”

In other words, no country is truly independent. Sadly, even in Heaven, you aren't allowed to tell God to go fuck himself.  

Having spent almost half a century in the legal profession, Gupta said he was focusing on the legal fraternity and stressed that “no country can claim to be independent unless it has an independent and fearless judiciary.”

Nonsense! China is independent. It does not have an 'independent and fearless judiciary'.  

He said this requires judges with integrity, intellect and “a spine,” the strength to stand up for justice and the courage to fight injustice while acting “without fear or favour.”

They must follow the law. They can't do anything they like. Otherwise they will be ignored or disintermediated.  

Gupta said constitutional courts, including the Supreme Court and High Courts, are not merely arbiters of disputes but are also responsible for protecting and upholding citizens’ fundamental rights.

They can order a particular party to provide a remedy. But if that party can ignore the court with impunity, the Bench can merely express its sorrow. Judges don't have magical powers.  

He said that, sadly, constitutional courts in recent years had not shown the “requisite sensitivity or strength” in doing so.

He was a useless piece of shit. That's true enough.  

He specifically referred to the right to liberty under Article 21, saying that this right is being violated “with impunity” and that courts in many cases have become “mute spectators.”

Because Judges don't have magical power. Also, in a constitutional bench, every judge has just one vote. Even the CJI can't override the votes of his brother judges.  

He recalled Justice H.R. Khanna’s dissent in the ADM Jabalpur case, in which Khanna held that even during an Emergency, citizens could not be deprived of fundamental rights except according to the procedure established by law.

Yet that is exactly what happened. The fact is, if there was an insurgency or serious law & order problem, the judiciary turned a blind eye to extra-judicial killing on an industrial scale.  

Gupta then addressed the issue of bail and prolonged pre-trial detention.

While “bail, not jail, is the rule” is a frequently cited legal principle, he said that in practice “jail, not bail” has become the rule.

For poorer people who can't afford lawyers.  

He noted that about 75% of people behind bars are undertrials, compared with about 24% who are convicts, and said it was shocking that there are three undertrials for every convicted person.

The judiciary has refused to reform itself. Some High Courts have introduced case management rules but the problem of adjournments remains. Senior advocates have a cozy relationship with judges. The system is run for their benefit such that cases are prolonged and more and more 'repeat fees' are collected.  

Against this backdrop, Gupta highlighted the case of Umar Khalid, writing, “Umar Khalid has been behind bars for more than six years and the trial has not even started.

His lawyers asked for adjournments on three occassions for personal reasons. Also, Khalid put in different pleas at different times.  

What about his right to liberty? What about his right to speedy trial?”

The Supreme Court did read in such a right in Hussainara Khatoon v. State of Bihar (1979). But you have to have an independent Case Management service in the Courts to ensure that there is a well defined time-table for every case. 

Gupta noted that the Supreme Court, in a later decision, had itself questioned the validity of the judgment in Umar Khalid’s case.

But they didn't give him bail.  

He went on to cite the Elgar Parishad case, noting that the accused had remained behind bars for years and that one had died in jail, while the trial had still not begun eight years after the incident.

When police officers are killed or injured, some useless idiot or the other will be made a scapegoat.  

He questioned why, if the allegations were as serious as claimed, the prosecution had not shown the same urgency in commencing the trial.

It is the defence who should show urgency.  

Gupta said that “the process has become the punishment”, arguing that people are condemned and their lives ruined by being labelled “anti-nationals”, while courts have failed to protect their fundamental rights.

Nationalists outnumber anti-nationals. If everybody gets 'true' liberty', the minority will be slaughtered.  

He also discussed the detention of Sonam Wangchuk, criticising the Supreme Court’s repeated adjournments in the habeas corpus proceedings.

Wangchuk was released within 6 months.  

Gupta argued that petitions concerning personal liberty must be decided at the earliest

In which case, the majority can do what it likes. The minority will get slaughtered. You pick up the ring-leader and he gets bail in a couple of days and can take revenge to his heart's content.  

and said the court should have determined whether Wangchuk’s detention was legal, even after the detention order was withdrawn

Preventive detention is legal in India and is explicitly authorized under Article 22 of the Constitution of India. 

Gupta also expressed concern about what he described as majoritarianism within the judiciary.

& the legislature & the country at large. That is why a small number of British people are no longer ruling India. Sad.  

He wrote that while democracy is based on majority rule, majoritarianism, where the voice of the other side is not heard, is “anathema to democracy”,

No. It is intrinsic to it.  

and said that “courts at all levels are moving towards majoritarianism.”

Because India became independent and the Hindu majority took over the country.  

He cited the Ram Janmabhoomi and Gyanvapi cases in this context and said the latter had opened the “floodgates of litigation” that could affect relations between communities.

He forgets that millions died or were displaced because of Partition. Some silly people pretended that Hindus were sweet and nice. Only Muslims went in for killing. The evidence is that all communities can do ethnic cleansing. 

He described the decision as one taken to “appease the majority.”

The alternative is to let the majority run amok.  

Gupta also contrasted the treatment of people from different communities in bail matters, writing that members of one community who consumed chicken in a boat on the Ganga were denied bail for months, while members of the majority community who consumed liquor on the same river were granted bail within hours.

Gupta weeps to recall that Hindus are the majority in India. 

He noted that such treatment was not the justice, liberty, equality or fraternity guaranteed by the Constitution.

True liberty would involve letting the majority slaughter the minority.  

He defended the right to dissent and peaceful protest, saying criticism of the government and its policies is an essential part of democracy.

When it is done by the leader of the Opposition- sure. Not when it is done by crazy kids.  

“The government is not the country,” he wrote,

Nor is the Bench.  

adding that the nation is above the executive, legislature and judiciary.

In which case, the majority should be permitted to slaughter the minority.  

Gupta also criticised the collegium system for judicial appointments, calling it “totally opaque” and saying important decisions are taken without sufficient explanation.

Fair point. Let the Government appoint judges.  

He raised concerns about the social composition of the higher judiciary, noting that many recent Supreme Court and High Court appointments were from upper-caste backgrounds and arguing that the Supreme Court should have representation from all sections of society.

We need more illiterate judges.  

Concluding his article, Gupta said that although the vast majority of judges are people of integrity, “the number of black sheep is increasing”

They were numerous enough in the Nineties.  

and called for introspection at the highest levels of the judiciary to restore public trust. He warned that if people lose faith in the judiciary, it could become irrelevant and “sound the death knell for a democratic India.”

No. Democracy just means that those who win elections get to rule. A Monarchy or One Party State may have a very good, wholly independent, Judiciary.  

“Where there is no democracy, the people can never be free or independent,” he said.

Nonsense! Enlightened Despotisms or Oligarchies often have more economic freedoms and better minority protection.  

What will happen next in the Umar Khalid/Sharjeel case?

The Supreme Court denied bail but made the following observations-

Before we conclude, it bears reiteration that a principle lies at the heart of constitutional adjudication in matters of this nature. 

That principle isn't what Gupta says it is. 

The Constitution guarantees personal liberty, but it does not conceive liberty as an isolated or absolute entitlement, detached from the security of the society in which it operates. The sovereignty, integrity, and security of the nation, as well as the preservation of public order, are not abstract concerns rather they are constitutional values which Parliament is entitled to protect through law. Where a special statutory framework has been enacted to address offences perceived to strike at these foundations,courts are duty-bound to give effect to that framework, subject always to constitutional discipline.

437. In the application of such law, the Court does not proceed on identity, ideology, belief, or association. It proceeds on role, material, and the statutory threshold governing the exercise of jurisdiction. Criminal law does not mandate identical outcomes merely because allegations arise from the same transaction.


Those alleged to have conceived, directed, or steered unlawful activity or terrorist activity stand on a different legal footing from those whose alleged involvement is confined to facilitation or participation at a different level. To disregard such distinctions would itself result in arbitrariness.

438. The present decision reflects this constitutional method. It neither endorses the prosecution case nor prejudges the guilt of any accused. It applies the law as it stands, recognising that individual liberty must be protected, but that it must also withstand the legitimate demands of national security and collective safety.

This balance is not a matter of preference rather it is a matter of constitutional duty.

439. Before parting, it is necessary to reiterate the limited nature of the present determination. The Court has not examined the merits of the prosecution case beyond the confines mandated at the stage of consideration of an application seeking bail, nor has it expressed any opinion on the ultimate culpability of any of the accused. All observations are confined to the material presently on record and to the statutory and constitutional standards governing pre-trial liberty under a special enactment.

440. Having regard to the nature of the prosecution and the period of incarceration already undergone, it is considered appropriate to direct that the Trial Court shall proceed with the matter with due expedition and shall endeavour to ensure that the examination of witnesses, particularly the protected witnesses relied upon by the prosecution, is taken up and carried forward without delay.

441. The prosecution shall take all necessary steps to secure the presence of its witnesses on the dates fixed and the parties shall refrain from seeking adjournments except for reasons which are unavoidable. The Trial Court shall be at liberty to regulate the proceedings in accordance with law so as to ensure that the trial is not unnecessarily prolonged, while at the same time safeguarding the rights of all parties.

This is perfectly reasonable. Why has Deepak Gupta got his knickers in a twist? Perhaps he believes the political tide is shifting away from the BJP. Might a future Congress led coalition reward him in some suitable manner?