The architecture of guilt: Prima facie forever

There are many ways a constitutional court can say no. On Monday, the Supreme Court chose the most exhausting route.

It said no with the reassurance that liberty was not being denied in principle - only postponed in practice, possibly for another year, possibly until witnesses finish speaking, possibly until time itself grows tired.

And somewhere between prima facie guilt and "architectural" (a word used ad nauseam in the judgment) culpability, a man who has spent over five years in prison without a trial reportedly said,

“Ab yahi zindagi hai.”

If that sentence does not unsettle you, nothing will.

The Court denied bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case while granting it to five others, explaining that the two stood on a “qualitatively different footing.”

This phrase deserves attention, because it does an enormous amount of work with very little sweat. It segregates suspicion into a hierarchy. It converts conjecture into command structure. It turns speeches, meetings, WhatsApp groups and protest vocabulary into something called architecture - a word that sounds deliberate, solid, almost admirable, until you remember that here, it implies a prison sentence with seemingly no end date.

The judgment is careful, polished and legally literate. It cites Article 21 even as it locks the door. It acknowledges delay while insisting that delay alone cannot unlock UAPA. It insists, repeatedly, that this is not a finding of guilt. And yet, every paragraph is heavy with the confidence of pre-judgment.

The Court says it cannot examine the defence material at the bail stage. Fair enough. But it also says that conspiracies often cloak themselves in the language of non-violence. This is less a legal proposition than a philosophical suspicion. Once you accept it, any protest speech becomes potentially criminal, provided it is sufficiently articulate and delivered by the wrong person at the wrong time.

Umar Khalid’s Amaravati speech, we are told, cannot be read in isolation. That is true. But neither can it be read only through the prosecution’s prism, stripped of context, cadence, audience and intent. If every call for civic disruption is a rehearsal for terror, then civil disobedience becomes a life-threatening stunt - safe to admire, dangerous to practice.

This is the quiet genius of the UAPA. It does not need to prove violence; it only needs to suggest potential. It does not need immediacy; it thrives on anticipation. Section 43D(5) does not say "prove". It says "believe". And belief, when sanctified by statute, is the most efficient jailor of all.

The Court insists that it is merely applying the law parliament made. That is true. But courts are not vending machines. They do not mechanically dispense outcomes upon insertion of statutes. They interpret, they weigh, they calibrate. When the Supreme Court says that the alleged “architects” of the riots must remain in custody to protect broader security interests, it is making a normative choice - one that places deterrence above deprivation and abstraction above the individual.

This is where the jurisprudence begins to wobble.

In the judgment, prolonged incarceration is acknowledged as a trigger for scrutiny, but not as a lever for release. Article 21 is recognised, but only in differentiated doses. Liberty is treated not as a presumption but as a variable, distributed according to perceived influence. Those with reach must wait longer. Those with words must pay more dearly for them.

It is worth asking: at what point does pre-trial detention cease to be preventive and become exemplary?

Five years is not a procedural inconvenience. It is an entire chapter of a life. In those five years, Umar Khalid finished no sentence except the one imposed by time. He buried no finding of guilt. He served no conviction. He simply waited. When he was briefly allowed out to attend his sister’s wedding, the photographs were not subversive. They were painfully ordinary. A man smiling awkwardly, a family pretending that normalcy had not been suspended indefinitely.

Normalcy, of course, is the first casualty of UAPA.

Outside the courtroom, the noise followed the verdict obediently. A New York mayor’s handwritten note became a threat to sovereignty. American lawmakers asking for a fair trial became meddlers. Sympathy itself was treated as foreign interference. The message was clear: dissent is domestic, but compassion is imported and, therefore, suspect.

This too has jurisprudential consequences. When political rhetoric mirrors prosecutorial language, the space for judicial insulation shrinks. When courts repeatedly hear that dissenters are “anti-national” and conspiracies are “regime change operations,” even the most conscientious judge must work harder to remember that the accused is still just that: an accused.

The judgment tells us that Khalid and Imam sit at the “top of the chain of command.” Chains are useful metaphors - they suggest order and strength. They also suggest restraint. Once you place someone at the top of a chain, it becomes much easier to justify why they cannot be allowed to move.

But chains are only as real as the links proven at trial. Until then, they are sketches - convincing perhaps, but unfinished.

Courts deny bail all the time. What is more troubling is the comfort with which the idea of waiting has been normalised. Wait for witnesses. Wait for a year. Wait for the system to catch up with itself. Wait, even as memory fades, evidence ages and undertrials quietly become fixtures.

“Ab yahi zindagi hai” is not resignation. It is diagnosis.

If protesting an arbitrary law can place you within the imaginative reach of anti-terror legislation, then dissent is no longer a right; it is a gamble. If speeches explaining the difference between a dharna and a chakka jam can be read as blueprints for terror, then vocabulary itself becomes incriminating. And if five years without trial can be defended as caution, then caution has swallowed liberty whole.

Courts often remind us that bail jurisprudence is not punishment. Perhaps it is time to remind ourselves that punishment is not only about verdicts. Sometimes, it is about duration. Sometimes, it is about waiting. And sometimes, it is about being told politely, eloquently, constitutionally, that this, for now, is life.