The Supreme Court’s decision to deny bail to Umar Khalid and Sharjeel Imam, while granting bail to five other co-accused in the same broad set of cases, has once again triggered a sharp and emotional public debate. What was a narrow legal determination at the bail stage has been expanded into a sweeping political and moral indictment of the Indian justice system.

At its core, the Court had a limited question before it: whether there was sufficient prima facie material to justify continued custody of these two accused at this stage of the proceedings. The debate that followed, however, went far beyond law. It questioned intent, motive, identity, and even the credibility of the judiciary itself.

A section of commentators, lawyers, journalists and political voices argued that Khalid and Imam have been “languishing in jail without trial” for nearly five years and that this delay itself proves injustice. This, it is claimed, is compounded by their Muslim identity under a right-wing political establishment. This argument deserves attention but it also demands scrutiny. It rests on assumptions that do not fully align with court records or with the broader reality of India’s criminal justice system.

First, the Supreme Court’s order does not rest on identity or ideology. It rests on differentiation of roles. The Court granted bail to five accused after concluding that the threshold for continued detention was not met in their cases. Bail was denied to two on the ground that the prosecution material, at this stage, indicated a more central role in planning, coordination and mobilisation linked to violence.

In criminal law, especially in conspiracy cases, this distinction is critical. Courts have consistently held that those alleged to have organised or orchestrated events are not similarly placed as those accused of participation or association. Treating all accused as identical, irrespective of alleged role, would erase a foundational principle of criminal liability.

This differentiation weakens the claim of blanket persecution. If religious identity were the decisive factor, outcomes would have been uniform. They were not.

The second argument—that five years without trial is itself proof of injustice is morally compelling but legally incomplete. India’s prisons are overwhelmingly populated by undertrials. Nearly three-fourths of all inmates are awaiting trial or even the framing of charges. Many have spent longer periods in custody than Khalid or Imam. Many will eventually be acquitted, not because they were celebrated dissidents or symbolic figures but because investigations failed, evidence collapsed or charges were unsustainable.

Yet their names rarely enter public debate. Their incarceration does not lead television primetime discussions or sustained campaigns. They do not belong to elite institutions. They do not carry ideological or political symbolism. Their suffering remains invisible.

This is not conjecture. Indian courts have repeatedly acquitted accused after years—sometimes decades of incarceration. The 2006 Mumbai local train blasts case ended in acquittal nearly nineteen years after arrest. The Akshardham temple attack case saw the Supreme Court acquit all accused while sharply criticising investigative lapses. In 2024, the Bombay High Court acquitted GN Saibaba, with the Supreme Court declining to stay the verdict. These cases underline a grim but undeniable truth: delay is systemic, not selective.

Importantly, courts have also demonstrated that stringent national-security laws are not beyond scrutiny. In several Delhi riots-related cases, courts have granted bail under UAPA where they found that the statutory ingredients of “terrorist activity” were not prima facie established. This shows that bail denial is not automatic once a harsh law is invoked. Courts do examine evidence. Decisions turn on material placed before them, not on slogans.

Balance also requires acknowledging outcomes across ideological lines. In terror cases linked to Hindutva groups such as the Mecca Masjid and Samjhauta Express blasts, courts acquitted all accused after finding the prosecution’s case inadequate. In the Ajmer Dargah blast case, courts convicted some accused and acquitted others. The pattern is consistent: courts convict where evidence holds and acquit where it does not.

This brings us to the political narrative. Parties such as the Congress, the Samajwadi Party and the Trinamool Congress increasingly frame prosecutions of Muslim accused as proof of minority persecution. This may deliver short-term political consolidation but it carries a long-term cost. It blurs the line between individual criminal liability and collective victimhood and weakens genuine struggles against discrimination.

More troubling is selective advocacy. When civil-liberties arguments are activated only for a few high-profile defendants—often connected to elite universities, media visibility or ideological alignment, they begin to resemble curated campaigns rather than principled stands. A rights discourse that ignores the faceless majority of undertrials is morally inconsistent.

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