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| Justice Deepak Gupta |
Meta Description: Former Supreme Court Justice Deepak Gupta has sharply criticised the Indian judiciary for failing to protect personal liberty, citing Umar Khalid's six-year pre-trial detention without trial. He warns that "procedure has become punishment" and calls out judges who fail to safeguard dissent.
NEW DELHI — A retired Supreme Court judge has broken the silence that usually shrouds India's higher judiciary, delivering a scathing critique of the very institution he once served.
Former Supreme Court Justice Deepak Gupta has stirred the conscience of judges across the nation — including Chief Justice of India Surya Kant — with his sharp condemnation of the judiciary's failure to protect personal liberty. His remarks have reignited a national conversation about the true meaning of constitutional safeguards, particularly under the stringent Unlawful Activities (Prevention) Act (UAPA).The Case That Shook the Conscience
At the heart of Gupta's criticism lies the case of Umar Khalid, the former Jawaharlal Nehru University student leader who has now spent more than six years in pre-trial detention in connection with the 2020 Delhi riots "larger conspiracy" case.
Khalid was arrested in September 2020. Charges have still not been framed. The trial has not begun. Yet he remains behind bars .
Gupta underscored this stark reality: the rights to liberty and a speedy trial, guaranteed under Article 21 of the Constitution, have been rendered meaningless for those caught in the machinery of UAPA proceedings.
"Procedure Has Become Punishment"
Writing in The Tribune, Gupta delivered a phrase that has since echoed across legal circles: "Procedure has become punishment."
His argument cuts to the heart of India's bail jurisprudence. Under Section 43D(5) of the UAPA, bail is effectively barred if the court concludes that the accusations are prima facie true. The threshold is so low that the state need only demonstrate that its allegations appear plausible on paper — not that they will withstand the rigours of a trial .
The result, as Justice Ujjal Bhuyan of the Supreme Court observed in May 2026, is a system where "pre-trial incarceration begins to acquire a post-trial punitive character" .
Gupta's critique extends beyond Khalid's case. He warned that courts at every level are sliding towards majoritarianism — a phenomenon he described as "the poison of democracy." He pointed to an unsettling double standard: members of one community, he noted, have been denied bail for months over minor allegations, while others receive swift relief for comparable or graver conduct.
Writing in The Tribune, Gupta delivered a phrase that has since echoed across legal circles: "Procedure has become punishment."
His argument cuts to the heart of India's bail jurisprudence. Under Section 43D(5) of the UAPA, bail is effectively barred if the court concludes that the accusations are prima facie true. The threshold is so low that the state need only demonstrate that its allegations appear plausible on paper — not that they will withstand the rigours of a trial .
The result, as Justice Ujjal Bhuyan of the Supreme Court observed in May 2026, is a system where "pre-trial incarceration begins to acquire a post-trial punitive character" .
Gupta's critique extends beyond Khalid's case. He warned that courts at every level are sliding towards majoritarianism — a phenomenon he described as "the poison of democracy." He pointed to an unsettling double standard: members of one community, he noted, have been denied bail for months over minor allegations, while others receive swift relief for comparable or graver conduct.
A Supreme Court Divided Against Itself
What makes Gupta's intervention particularly striking is that it comes amid an extraordinary public rift within the Supreme Court itself.
In January 2026, a two-judge bench of the apex court denied bail to Khalid and co-accused Sharjeel Imam, classifying them as "masterminds" who stood on a "qualitatively different footing" from other accused . The bench also imposed a twelve-month bar on fresh bail applications — a restriction Amnesty International condemned as "an unduly restrictive" curb on the right to seek judicial review .
Four months later, in a rare act of self-reproach, another bench of Justices B.V. Nagarathna and Ujjal Bhuyan expressed "serious reservations" about the January judgment. They held that "bail is the rule and jail is the exception" remains a constitutional principle flowing directly from Articles 21 and 22 — and that this principle cannot be overridden by the mere invocation of UAPA charges .
The bench went further, warning that if the low prima facie threshold were accepted as sufficient to deny bail indefinitely, "no court will ever grant bail, no matter the length of period of such incarceration" .
The Delhi Police, however, continues to oppose Khalid's bail pleas before the High Court, arguing that the January 5 order remains binding and that the fresh applications are premature under the Supreme Court's own directions .
What makes Gupta's intervention particularly striking is that it comes amid an extraordinary public rift within the Supreme Court itself.
In January 2026, a two-judge bench of the apex court denied bail to Khalid and co-accused Sharjeel Imam, classifying them as "masterminds" who stood on a "qualitatively different footing" from other accused . The bench also imposed a twelve-month bar on fresh bail applications — a restriction Amnesty International condemned as "an unduly restrictive" curb on the right to seek judicial review .
Four months later, in a rare act of self-reproach, another bench of Justices B.V. Nagarathna and Ujjal Bhuyan expressed "serious reservations" about the January judgment. They held that "bail is the rule and jail is the exception" remains a constitutional principle flowing directly from Articles 21 and 22 — and that this principle cannot be overridden by the mere invocation of UAPA charges .
The bench went further, warning that if the low prima facie threshold were accepted as sufficient to deny bail indefinitely, "no court will ever grant bail, no matter the length of period of such incarceration" .
The Delhi Police, however, continues to oppose Khalid's bail pleas before the High Court, arguing that the January 5 order remains binding and that the fresh applications are premature under the Supreme Court's own directions .
A Pattern of Prolonged Detention
Khalid's case is not an aberration. It is part of a broader pattern that has seen UAPA accused persons languishing in jail for years — sometimes decades — before eventual acquittal.
As The Hindu noted in a July 2026 editorial, "people accused under the UAPA have been kept in jail for more than two decades before eventually being acquitted, with the best years of their lives robbed from them" . The editorial pointed to troubling inconsistencies even within the same court, where judges have delivered contradictory bail rulings on the same underlying facts .
More than 100 prominent citizens — including Arundhati Roy, Amitav Ghosh, and Ramachandra Guha — have written to Chief Justice Surya Kant, invoking his own landmark judgment in Union of India v. K.A. Najeeb (2021) and urging him to uphold its principles in Khalid's case .
"The trial hasn't even begun till date," the letter noted. "But despite that, their bail applications have been repeatedly rejected" .
Khalid's case is not an aberration. It is part of a broader pattern that has seen UAPA accused persons languishing in jail for years — sometimes decades — before eventual acquittal.
As The Hindu noted in a July 2026 editorial, "people accused under the UAPA have been kept in jail for more than two decades before eventually being acquitted, with the best years of their lives robbed from them" . The editorial pointed to troubling inconsistencies even within the same court, where judges have delivered contradictory bail rulings on the same underlying facts .
More than 100 prominent citizens — including Arundhati Roy, Amitav Ghosh, and Ramachandra Guha — have written to Chief Justice Surya Kant, invoking his own landmark judgment in Union of India v. K.A. Najeeb (2021) and urging him to uphold its principles in Khalid's case .
"The trial hasn't even begun till date," the letter noted. "But despite that, their bail applications have been repeatedly rejected" .
What Gupta's Intervention Means
Retired judges in India rarely speak with such directness about their former colleagues. Gupta's intervention is significant not merely for its content but for its timing and its target.
He has effectively asked a question that the judiciary must now confront: If the courts cannot protect the liberty of an individual who has spent six years in jail without trial, what exactly are they protecting?
In a democracy where "bail is the rule and jail is the exception" has been repeated like a mantra, the lived reality for many accused persons tells a different story. Gupta's words have disturbed the sleep of judges — and perhaps, that is precisely what was needed.
Retired judges in India rarely speak with such directness about their former colleagues. Gupta's intervention is significant not merely for its content but for its timing and its target.
He has effectively asked a question that the judiciary must now confront: If the courts cannot protect the liberty of an individual who has spent six years in jail without trial, what exactly are they protecting?
In a democracy where "bail is the rule and jail is the exception" has been repeated like a mantra, the lived reality for many accused persons tells a different story. Gupta's words have disturbed the sleep of judges — and perhaps, that is precisely what was needed.
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