The Asymmetry of Justice: Pre-Trial Detention as Punishment

The Delhi Riots Conspiracy Case: Khalid, Imam, and the Missing FIRs

In February 2020, communal violence swept through North-East Delhi, leaving 53 people dead, two-thirds of them Muslim. The Delhi Police registered 757 cases.

Six years later, 249 cases remain under investigation, 75 have been closed for lack of evidence, and acquittals involving 386 individuals across 109 cases vastly outnumber convictions, with 51 individuals convicted across 22 cases.

Yet the law has moved with remarkable severity against a particular group of accused.

Umar Khalid and Sharjeel Imam, both PhD scholars, have remained in custody since early 2020—more than five years—without trial.

In January 2026, the Supreme Court denied them bail, holding that they stood on a “different footing” compared with co-accused who had been directed to be released. The Court described them as “architects” and “ideological drivers” of a conspiracy—language that, according to the article, assigned intent before any trial had established it.

Sharjeel Imam was separately granted bail by the Delhi High Court in May 2024 in a sedition case after spending more than half the maximum possible sentence in custody. However, that bail did not extend to the larger conspiracy case, and he remained incarcerated.

The Kapil Mishra Question

Meanwhile, Kapil Mishra, then a BJP leader, was captured on video on February 23, 2020—hours before the violence erupted—issuing an “ultimatum” to the Delhi Police beside then-DCP Ved Prakash Surya.

He demanded that anti-CAA protesters be cleared from Jaffrabad and Chand Bagh within three days, warning that his supporters would “hit the streets.”

A fact-finding committee of the Delhi Minorities Commission found that speeches by BJP leaders, including Mishra, served as a “spark” for the riots.

On February 26, 2020, Justice S. Muralidhar of the Delhi High Court played the video in court and directed the police to register an FIR against Mishra and three other BJP leaders within 24 hours.

Solicitor General Tushar Mehta argued that the timing was not “conducive” because it could “aggravate” the situation. That same night, Justice Muralidhar received a transfer notification.

No FIR was ever registered against Mishra for the riots.

In April 2025, more than five years later, a magistrate finally ordered a deeper investigation into Mishra’s role. The court noted that police interrogation records showed Mishra had not been asked “important questions” and said the police claim of having investigated him was unfounded.

Before that investigation could begin, however, a superior court swiftly stayed the order ex parte, without hearing the complainant.

Mishra is now Delhi’s Law Minister.

The Bhima Koregaon-Elgar Parishad Case: The BK-16 and the First FIR

On January 1, 2018, violence erupted at Bhima Koregaon, a site commemorating an 1818 battle in which Dalit soldiers defeated the Peshwa regime.

The first FIR filed over the violence named pro-Hindutva leaders Milind Ekbote and Sambhaji Bhide as accused.

Ekbote was arrested in March 2018 after the Supreme Court denied him anticipatory bail, but he was released on bail within a month.

Bhide, who was then 88, was given a clean chit by then-Maharashtra Chief Minister Devendra Fadnavis and was never arrested. As of 2021, Ekbote remained out on bail and Bhide had not even been called for questioning.

The BK-16

A second FIR was subsequently filed, blaming the Elgar Parishad event held a day earlier and alleging a Maoist conspiracy.

This became the basis for the arrest of 16 activists, lawyers and academics—the “BK-16″—under the Unlawful Activities (Prevention) Act (UAPA).

Father Stan Swamy, an 84-year-old Jesuit priest and tribal rights activist, was arrested in October 2020.

He suffered from advanced Parkinson’s disease and had difficulty feeding himself. Prison authorities allegedly denied him basic amenities, including a straw and sipper.

He contracted COVID-19 in May 2021 and died in custody on July 5, 2021, after being repeatedly denied interim bail.

The UN Working Group on Arbitrary Detention declared his detention arbitrary and described his death as “utterly preventable.”

A judicial magistrate’s inquiry subsequently ruled it a “natural death” with no wrongdoing, while the Maharashtra State Human Rights Commission accepted those findings in May 2025.

Mahesh Raut and Prolonged Detention

Mahesh Raut, a tribal rights researcher and former Prime Minister’s Rural Development Fellow, was arrested in June 2018.

In September 2023, after five years in jail, the Bombay High Court granted him bail on merits, finding no substantive evidence directly linking him to violent or terror-related activity.

The NIA appealed to the Supreme Court, which stayed the bail indefinitely.

For two years, Raut remained behind bars despite a judicial finding in his favor. He received only piecemeal interim relief—to write law exams, perform his grandmother’s last rites, and undergo six weeks of medical treatment for rheumatoid arthritis.

As of early 2026, of the 16 accused, one was dead, one remained in custody, and 14 were out on bail under stringent conditions, including location tracking, weekly police attendance, and restrictions on movement and speech.

The trial had not begun, and charges had yet to be framed.

The Structural Pattern: UAPA and the De Facto Sentence

The article argues that what connects these cases is not merely selective prosecution but a structural feature of the legal regime.

The UAPA creates a near-absolute barrier to bail: a court must be satisfied that there are “reasonable grounds for believing” that the accusation is prima facie true.

According to the article, this standard has been interpreted so strictly that courts routinely deny bail even when the trial itself is nowhere in sight.

The result, the article argues, is that pre-trial detention becomes the punishment.

Umar Khalid and Sharjeel Imam have spent more than five years in jail for a conspiracy that, six years on, has produced only 51 convictions across 757 cases.

Mahesh Raut spent more than seven years in jail despite a High Court finding that he should be released.

Father Stan Swamy died before he could see a courtroom.

Different Treatment Under the Same Legal System?

The article contrasts these cases with the treatment of individuals aligned with the ruling dispensation.

It notes that Ekbote, despite convictions in five rioting cases, remained free on bail. Bhide was never arrested.

Mishra, after issuing an ultimatum that preceded the violence, was described as having been defended by the police, protected by a swift judicial stay, and subsequently elevated to Law Minister.

The article frames the issue not simply as a question of guilt or innocence in individual cases, but as a question of whether the law operates as a neutral instrument or as a selective weapon.

It asks whether the same speech can be treated as “terrorism” when spoken by a Muslim student but as “free expression” when spoken by a BJP leader, and whether bail becomes accessible to some while remaining effectively impossible for others.

The Broader Political and Social Argument

The document then expands its argument beyond pre-trial detention.

It claims that after 2014, India moved from a conservative liberal democracy toward what it describes as a “de facto ethnic democracy,” arguing that Muslims—and to a lesser extent Christians—have experienced second-class status through polarization, vigilantism, selective laws, reduced political representation, housing exclusion and institutional tilt.

The article also discusses statements made by political leaders and argues that inclusive language abroad cannot substitute for equal dignity at home.

Housing Discrimination

One specific issue highlighted in the document is housing discrimination.

The article states that multiple studies and reports, including field research in Delhi, Mumbai and parts of Uttar Pradesh, have documented instances in which Muslims face difficulties renting or purchasing homes in predominantly Hindu neighbourhoods or cooperative societies.

It cites practices such as coded restrictions including “vegetarians only” and “family only,” alongside explicit communal objections.

According to the article, these practices contribute to residential segregation, with some Muslims becoming concentrated in particular localities because of safety and access considerations rather than simple preference.

The document concludes that this represents a form of social exclusion that can limit mobility, integration and equal access to housing despite formal legal equality.

Conclusion

The central argument of “The Asymmetry of Justice: Pre-Trial Detention as Punishment” is that prolonged detention before trial can itself function as a form of punishment.

Through the Delhi Riots conspiracy case, the Bhima Koregaon-Elgar Parishad case and examples involving Kapil Mishra, the article examines what it describes as unequal application of criminal law, bail provisions and investigative processes.

Its broader question is whether India’s legal institutions are applying the same standards consistently—or whether political identity, ideology and social position influence how individuals experience the justice system.

Sources for Further Reading

• Frontline: How the Supreme Court hardened UAPA bail rules in Delhi riots case (2026)
• Indian Express: Elgaar Parishad-Bhima Koregaon case: 16 accused, 1 dead, 1 in custody, 14 out on bail (2026)
• Frontline: Kapil Mishra, Umar Khalid, and the unequal weight of justice (2025)