– Ranjan Solomon
When a convicted child-rapist like Asaram is granted medical bail while unconvicted young citizens like Umar Khalid, other student activists, journalists, and tribal-rights defenders remain in prolonged incarceration without trial, it is not merely a judicial contrast. It is a constitutional moment. A mirror that asks whether equality before law – Article 14 – remains a living promise or a ceremonial inscription. A democracy does not collapse through one spectacular blow, but through a thousand quiet failures where the powerful are shielded and dissenters are caged.
Asaram’s conviction rests on judicial findings supported by evidence of rape, coercion, and the manipulation of devotees. His release on medical grounds comes after a decade of incarceration, yet the timing and context sharpen a troubling pattern: those convicted of grave and predatory crimes often find judicial relief, while those merely accused of political dissent face a justice system that has inverted the presumption of innocence.
Contrast this with the case of Umar Khalid. No court has found him guilty. No evidence of violent intent has been proven. Yet he remains imprisoned under the Unlawful Activities (Prevention) Act, a statute whose bail provisions – as jurisprudence has evolved – allow pre-trial incarceration to become punishment. The Supreme Court itself warned in Hussainara Khatoon that pre-trial detention must never substitute for adjudication, declaring that “continuance of detention would be clearly violative” of Article 21 when the State cannot ensure a speedy trial.¹ But today, delay has metamorphosed into strategy, and the docket becomes the real prison.
The Bhima Koregaon detainees – academics, lawyers, clergy, Dalit rights defenders – likewise remain inside for years, despite advanced age, health vulnerabilities, and serious doubts about the integrity of digital evidence. Stan Swamy died waiting for the State to justify its accusation. The law did not fail him; the State’s interpretation of the law murdered him slowly. And his death did not shock the institutions meant to safeguard liberty; it barely disturbed their paperwork.
Ladakh’s environmental activist Sonam Wangchuk’s colleagues too face surveillance, intimidation, and legal harassment for demanding constitutional safeguards and ecological rights. Their language is not the chant of violence but the vocabulary of constitutional federalism – autonomy, fragile ecologies, cultural protection. Yet they are watched like insurgents.
Meanwhile, a union minister who publicly shouted “goli maaro saalon ko” – an incitement to kill fellow citizens – remains untouched by law, promoted politically and culturally. That line did not emerge in a vacuum; it preceded real bullets fired at real students outside Jamia Millia Islamia. When speech leads to blood, silence becomes complicity. Yet silence is precisely what the system has offered.
This asymmetry is not accidental. It is political jurisprudence masquerading as national security. Statutes like UAPA were designed for exceptional circumstances, not for dissent, not for campus speeches, not for citizens who dream of a more just nation. But the State has learned that where sedition failed, UAPA succeeds – by reversing the burden of constitutional liberty. Under this regime, accusation becomes conviction, and trial becomes an afterthought postponed into irrelevance.
The Supreme Court once emphasised that bail jurisprudence rests on the principle that liberty is the norm and custody the exception.² In Gurbaksh Singh Sibbia, Justice Chandrachud warned against surrendering judicial discretion to fears of political disorder, reminding that courts must interpret the law not through the anxieties of the State, but through the spirit of the Constitution.³ Yet today, exceptional laws are treated as ordinary tools, and ordinary freedoms treated as threats.
Many will say: but Asaram served years; temporary medical bail is procedural compassion. That is precisely the point. Mercy is available. But its distribution reveals moral hierarchy. Convicted predators obtain humanity; democratic dissenters do not. This inversion is not legal; it is ideological. It signals, unmistakably: the State will forgive violence towards women and children sooner than it will forgive ideological challenge to power.
Our constitutional vocabulary on detention is unambiguous. Speedy trial is integral to the right to life, the Supreme Court held in Hussainara Khatoon.⁴ The Court has recently reiterated that prosecuting agencies must not oppose bail when they cannot ensure timely trial.⁵ Yet in political cases, delay becomes institutional policy. Trials stretch not because evidence demands it but because power benefits from it. Bail hearings become mini-trials; trials become deferred hope; humanity becomes a casualty of national security discourse.
UAPA sets a threshold where bail is nearly impossible once a prima facie case is alleged.⁶ The effect is chilling: the question becomes not whether you are guilty, but whether the State wishes to keep you guilty through process alone. Scholars have long noted that punishment without verdict corrodes the reformative promise of criminal justice.⁷ The law transforms from a shield of liberty into a scaffold of intimidation.
And through all this, a dangerous public ethic creeps in: that dissent equals disloyalty, and that disloyalty deserves deprivation rather than debate. Democracies are not afraid of disagreement. They fear conformity masquerading as patriotism. They rot not when people burn buses but when people stop asking questions.
Some defend these detentions by invoking national security. But a State strong in its legitimacy does not fear students or poets. A Republic confident in its sovereignty does not imprison tribal leaders in their 70s while rapists find temporary sanctuary. Stability secured through fear is not stability; it is the quiet of a held breath, a nation waiting for the air to return to its lungs.
The question before us is not about individual cases alone. It is a question of moral architecture. When the judiciary bends towards convenience rather than conscience, when executive power shadows the courtroom, when dissenters wait for years for hearings while those convicted of violence find procedural escape, justice ceases to be blind; it becomes selective.
Dr. Ambedkar warned that institutions would be hollowed not by external foes but by internal corrosion. We are witnessing that erosion – not in dramatic decrees, but in bail orders, adjournments, medical certificates, and the slow, bureaucratic strangling of liberty.
There is still time to reclaim the constitutional promise. Courts must restore the presumption of innocence, speed of trial, and humanitarian bail as principles, not privileges. Parliament must re-examine exceptional laws that have become tools of routine repression. And society must refuse the seduction of strong-State ideology that treats critics as enemies and power as truth.
Justice, Martin Luther King Jr. reminded us, bends toward moral arc. But arcs do not bend themselves; citizens bend them. Today, that arc is bent downward – towards impunity for the powerful and punishment for the inconvenient. Our task is not merely to observe this moment; it is to resist it. To insist that in a Republic, liberty cannot be a favour, dissent cannot be a crime, and bail cannot be an instrument of political vendetta.
A democracy measured by its prisons, not its parliament, becomes a prison itself. We must choose whether our courts remain temples of liberty or become chambers of obedience.
Footnotes
- Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, (1979) 1 SCC 98.
- “Bail is the rule and jail the exception”: Supreme Court, multiple reiterations; see Satender Kumar Antil v. CBI, (2022) 10 SCC 51.
- Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
- Hussainara, supra.
- SC observation on prosecuting agencies and trial delay (2024), reported at Sathee IITK, “Prosecuting agencies should not oppose bail…”
- UAPA, Act 37 of 1967; bail threshold Section 43D (5).
- A. Mishra, Prisoners’ Dilemma: Is India a Real Follower of Reformative Theory? SSRN (2020).
[Ranjan Solomon is a political commentator and human rights defender.]
