The Price of Dissent: Why India Cages its Critics and Frees its Convicts

The traditional scales of justice in the Indian judiciary have increasingly been replaced by a system that considers the identity of the accused and the specific law invoked, rather than the gravity of the offense. Two parallel worlds have developed in the legal system: the one for those accused or convicted of violent, visceral “crimes against society” a system that is swift and frictionless and moves them quickly towards freedom and the other, for political dissent, mostly from marginalized communities, where they have been treated to an avalanche of pre-trial detention, with the result that there is no real prospect of them being freed.

Reflect on perverse encounters that we are living in today. A cult leader, Gurmeet Ram Rahim Singh, walks out of prison, on a regular parade of parolees and furloughs. The reckless driving by a teenager in the Pune Porsche case, where two people died, saw the accused swiftly shielded and granted bail by the legal system. When it comes to the rule of law, as expressed in the underlying principle of the criminal law, that bail is the rule and jail is the exception, this is a principle that is also very well established in the eyes of the systemic rapists and violent offenders.

But, switch to India’s maximum-security corridors. The Citizenship Amendment Act (CAA) has brought a group of high-profile political activists, scholars and student leaders, who spoke out against the controversial legislation from a wooden platform, into a “statutory black hole.” To them the rule of law is turned on its head: They see the prison cell as the norm; bail as an unusual and rare occurrence that requires a long fight.

Regular Law Vs. The UAPA Trap

A moral imbalance of this depth requires a deeper understanding than judicial prejudice would suggest, and needs to be understood through the prism of structural engineering of our laws.

If the crime is violent (murder, assault, sexual assault etc.) the person is tried under normal criminal law (the Bharatiya Nyaya Sanhita). In normal practice, under ordinary jurisprudence, the Courts take a careful view of the following three practical concerns when a chargesheet is issued: Is the accused likely to flee or abscond with the crime? Will they tamper with evidence? Will they cause witness intimidation? The answer would be no if the moral evil of the crime doesn’t lawfully prohibit the granting of bail. The accused is put back on the streets and the wheels of trial grind slowly over decades.

Then there’s Unlawful Activities (Prevention) Act. The state’s move to quell a critic is no different from the usual protest, but dressed up in the garb of terrorism. The legislature has explicitly tied the hands of the judiciary in Section 43D(5)Section 43D(5) of UAPAA strict statutory provision that explicitly prohibits courts from granting bail if the police’s allegations appear true at face value, effectively shifting the burden of proof to the accused. of the UAPA. Under the section, a court has to refuse bail if the police’s allegations on the face of the case diary seem to be “prima facie true”Prima FacieA Latin term meaning “at first sight.” In law, it means evidence is sufficient to prove a case unless contradicted, preventing judges from examining deeper merits during bail hearings..

In effect, this means that in practice, judges have “admissibility-blind” adjudication. When the case is in the bail hearings stage, defense counsels are not allowed to produce evidence that contradicts the prosecution’s evidence, or find that the prosecution’s evidence is fabricated or coerced. The judge must give police’s story credence as a fact. Punishment is the process itself! The state gets a conviction without having to have to go through trial.

The Faces of Detention: Umar Khalid and Sharjeel Imam

This structural trap is evident in the lives of such students as Umar Khalid, who was a student leader from the former JNU, and scholar-activist Sharjeel Imam. Arrested in 2020, both have been languishing in maximum-security prisons for over five and a half years as “under-trials”, accused of a “larger conspiracy” in the northeast Delhi communal violence.

One of the key pieces of evidence against them is the WhatsApp chats and public speeches made days before the violence, along with ideas of how they could have “mobilized” an ideology. At a bail hearing in a regular criminal trial, inconsistencies in this kind of circumstantial evidence would be subjected to the cross examination that is meant for that type of evidence. Their much sought-after demands have been repeatedly hitting the wall, however, under the UAPA.

The horror of their confinement is that they are being punished. People who are charged with physical violence leave jail in no more than a few weeks, Khalid and Imam are still in jail with no trial even commencing. Half a decade of incarceration for people who haven’t been convicted of anything is a state weapon that’s been used for many years now. The message for the student community and civil society is a shocking one: “Thinking, speaking, and organizing have a significantly greater cost than physically attacking society.”

The Statistical Charade

Always, the state’s excuse for such harsh laws is national security. However, the facts are quite the opposite. The statistics of NCRB, which are always available, clearly indicate that very few people are convicted under the UAPA and the rate of conviction is in the low single digits. It is typically less than one percent in volatile areas.

On 19th May, 2026, Justice B.V. Nagarathna & Justice Ujjal Bhuyan (Syed Iftikhar Andrabi v. NIA) allowed bail to an under-trial, who had languished in custody for almost six years without any trial date. Justice Nagarathna had firmly stated that the term “bail is the rule” was not a hollow catch-phrase even in the “UAPA cases” and that no one could be held in pre-trial custody and treated as an “imprisoned but not convicted person”. The Bench openly decried previous coordinate benchesCoordinate BenchA bench of the Supreme Court or High Court comprising the same number of judges as another bench. Rulings of coordinate benches hold equal weight, often requiring a larger bench to resolve conflicting judgments. for watering down the constitutional protection laid out in the landmark K.A. Najeeb (2021) case, which found that delay in the trial amounted to a violation of Article 21 and overrides any statutory prohibition on bail.

These numbers are no measure of an efficient counter-terrorism apparatus, but an apparatus geared to systemic pre-trial warehousing. The imprisonment of 95 of the 100 UAPA accused for the past 10 years, if the cases are ultimately acquitted – will not have deterred any terror – it was a punishment for dissent.

The 2026 Jurisprudential Battleground

This growing divide has brought the Supreme Court of India into a pitched battle of ideas within the court on the essence of the Right to Liberty as enshrined in Article 21 of the Constitution of India.

This dichotomy was vividly demonstrated in the January 2026 Supreme Court Bench in Gulfisha Fatima v. State where the strict statutory proviso, Section 43D(5), was strictly applied to both Umar Khalid and Sharjeel Imam. The Bench even went so far as to say that trial delays could not be an automatic “trump card” to move aside anti-terror legislation.

This is a very strict reading, however, which prompted an instant judicial response. As of mid-May 2026, the coordination Bench of Justices B.V. Nagarathna and Ujjal Bhuyan expressed “serious reservations” with regards to the January order. Justice Nagarathna, in granting bail to a J&K under-trial, who has been jailed for five years, emphatically reiterated that “bail is the rule is not an empty slogan, even in UAPA cases.” The strength of Section 43D(5) will “melt down” if the state is allowed to detain someone for too long, Justice Bhuyan added, citing Umar Khalid’s case as an example of injustice.

This ideological spat reached its climax on 22nd May, 2026 when a Bench of the Hon’ble Mr. Justice Mishra and Mr. Justice Shaikh referred the fundamental conflict to a larger Constitution Bench, to decide whether the clauses of statutes can completely abate constitutional rights. Co-accused Tasleem Ahmed and Khalid Saifi were granted interim bail for six months until the final hearing, while Umar Khalid and Sharjeel Imam weren’t included in this immediate relief barring them from jail with the exception of a brief, bittersweet three-day humanitarian interim bail granted to Khalid in June 2026, under a strict gag order, to visit his sick mother.

The Scale of Democratic Health

The condition of a democratic country is not determined by the noble words of its Constitution, but by the number of its prisons. The rule of law begins to splinter when the state is super-sensitive to the interests of the rich offenders, reckless drivers and violent convicts but is all but ruthless against the student activists and scholars.

It is not that the Indian judiciary is failing to arrest Umar Khalid, Sharjeel Imam and other anti-CAA activists, it is that it is doing an effective job of political asymmetric warfare using the law. While the state holds its critics in custody, it is clear it has little patience toward those who are allowed to roam freely at regular bail who are willing to inflict violence on the nation’s citizens. The state’s heavy-handedness toward its critics, while it permits those who would inflict violence on the nation’s citizens to wander freely at regular bail, is a message to the populace that there is a legal remedy for every life taken, but an infinite price for questioning the state’s narrative.

The fate of a few activists is not on the balance in the Supreme Court as its larger Bench is set to determine the fate of UAPA bail jurisprudence. That’s the survival of the constitutional promise that the state doesn’t have the right to lock a voice up because it doesn’t like the song.