In India, trial happens by extended detention

The world's largest democracy, or so the slogan goes, has perfected a quiet kind of cruelty against those who speak truth to power. For activists and journalists who question Narendra Modi’s Bharatiya Janata Party (BJP) government, the punishment is arbitrary detention without trial, stretched endlessly into a legal void where no charge is filed and no freedom is granted. UN experts have called this pattern a violation of international human rights law.

To understand how this machinery operates, one need look no further than the case of Umar Khalid, a 33-year-old student activist and doctoral graduate of Jawaharlal Nehru University. Arrested on September 13, 2020, Khalid has spent more than five years in pretrial detention. His alleged crime was not violence, not conspiracy to commit terror, but a speech. On February 17, 2020, standing before 700 protesters in Amravati, Maharashtra, he spoke against the Citizenship Amendment Act. He invoked Mahatma Gandhi’s tradition of non-violent civil disobedience. He explicitly urged protesters not to respond to violence with violence. For this, he was charged with 29 offences, including sedition, criminal conspiracy, and terrorism under the Unlawful Activities (Prevention) Act.

Prosecutors labeled him a ‘key conspirator,’ a ‘silent whisperer,’ and an architect of ‘remote supervision’ over protests. Yet, despite the severity of these accusations, more than five years have passed without a single day of trial. The case remains stuck at the stage of arguments over charges. No verdict has been reached, no evidence has been tested in open court. Instead, Khalid sits in Tihar Jail, sharing facilities with convicted criminals, while the government offers no proof that his words ever incited violence.

It was precisely this Kafkaesque legal limbo that prompted the United Nations Working Group on Arbitrary Detention to intervene. In November 2025, the body delivered a scathing opinion on Khalid’s detention, finding his imprisonment to be arbitrary under four separate categories of international law. The government of India did not bother to respond to the UN’s communication. It offered no defence, no explanation, and no denial of the allegations levelled by the experts.

The first category of arbitrariness identified by the Working Group concerns the very legal basis of Khalid’s detention. Indian courts, the UN found, failed to conduct an individualized determination of whether his continued detention was reasonable or necessary. Section 43(D)(5) of the Unlawful Activities (Prevention) Act effectively makes bail nearly impossible by requiring only ‘prima facie’ evidence of an offence — a threshold so low that courts denied Khalid bail multiple times, not because he posed a flight risk or a danger to society, but simply because the charges against him were serious. As the Working Group reminded, pretrial detention should be the exception, not the rule. In Khalid’s case, the Modi administration made it the rule.

Moving to the second category, the UN experts determined that Khalid’s detention directly resulted from the peaceful exercise of his fundamental rights, freedom of expression, assembly, association, and participation in public affairs. His speech explicitly rejected violence and there is no evidence he ever called for riots. Yet, the government used vague provisions of the Unlawful Activities (Prevention) Act and the Indian Penal Code, whose definitions of ‘unlawful activities’ and ‘sedition’ remain dangerously imprecise to criminalize his activism. The UN warned that such vague laws confer excessive discretionary powers upon state agencies, enabling them to silence dissent under the guise of national security.

Even more alarming are the fair trial violations uncovered under the third category. After his arrest on September 13, 2020, Khalid was denied access to his lawyers for two full days — even though his lawyers were present outside the police station. His 11-hour interrogation the day before his arrest took place without legal counsel. His bail application then languished before the Supreme Court for over nine months and 18 days, adjourned approximately 12 times due to recusals, scheduling conflicts, and benches changed without explanation. More than five years later, his trial has not even started. The UN experts called this an excessive delay that violated his presumption of innocence, effectively punishing him for crimes that remain unproven and untried.

Finally, the Working Group found that Khalid was targeted on discriminatory grounds under the fifth category, specifically, his political opinion and his status as a human rights defender focused on Muslim minority rights and indigenous communities. The UN Special Rapporteur on human rights defenders has previously identified a pattern of Indian authorities using national security legislation to silence activists working on religious minority issues. Khalid’s case fits squarely into that pattern, the Working Group concluded.

Taken together, these findings paint a disturbing picture of India’s legal system as a tool for silencing dissent. And the government’s refusal to engage with the UN Working Group only deepens the concern. In the absence of any reply, the UN experts recommended Khalid’s immediate release, along with compensation and a full investigation into the violations of his rights.

But for Khalid, there is no freedom and he remains in jail. His case is not an outlier, it serves as a warning for the declines that are becoming ever so evident under Prime Minister Modi and his Hindu nationalists BJP leadership. Across the country, activists, journalists, and students who question government policy find themselves trapped in the same legal purgatory, charged under vague laws, denied bail, held for years without trial. The world’s largest democracy, experts and advocacy groups caution, has learned to detain first and ask questions never. And the UN has now put it on notice not just in Khalid’s case but also Jagtar Singh Johal’s detention.

If Khalid’s case exposes how the system operates, Johal’s case shows how long it can keep someone behind bars without ever proving anything. Eight years — roughly three thousand and eighty-nine days later, Johal remains inside, with no end in sight. Johal is a British national and a Sikh human rights defender, but he didn’t come to India to fight the government, he came to get married. In November 2017, not long after his wedding in Punjab, hooded men took him. They turned out to be police officers. For ten days they held him somewhere undisclosed, no lawyers, no family. He says they gave him electric shocks, forced him into stress positions, kept him from sleeping, and threatened to kill him. The Indian government has never seriously investigated any of it.

When he reappeared, he was in court, charged with terrorism offences. Some carried the death penalty. The charges reportedly rested on confessions that came out of that ten-day black hole. In March 2025, a court acquitted him on one of the charges. No reliable evidence, the judge said. But Johal, like Khalid, who awaits any form of trial, is still in jail.

The UN Working Group on Arbitrary Detention, the same body that condemned Umar Khalid’s detention, has now issued a statement on Johal’s case. “Eight and a half years of arbitrary detention without a clear path to trial is not justice,” they said. “It is unlawful suffering. The prolonged uncertainty alone is a form of psychological torture.”

The same machinery that held Khalid for five years without trial and Johal for eight has also held Irfan Mehraj captive, a Kashmiri journalist who has spent more than 1,000 days in a maximum-security prison in New Delhi, over 500 miles from his home in Srinagar, with no trial begun and no bail resolved.

In February this year, an international intervention pulled his case into the global spotlight when the New York-based Human Rights Foundation and the Asian Forum for Human Rights and Development submitted an individual complaint to the UN Working Group on Arbitrary Detention on his behalf, urging the body to declare his detention arbitrary and in violation of international law. But the warning from HRF went further: Mehraj’s case is not an aberration but part of a pattern where Indian authorities jail first and dispense justice, if it comes at all, much later. “Mehraj’s case exemplifies India’s practice of ‘trial by jail’,” Hannah Van Dijcke, legal and research officer at HRF told the Express Tribune, adding that dissidents are subjected to indefinite pre-trial detention where the legal process itself becomes the punishment.

Indian authorities claim Mehraj’s detention is linked to his former work with the Jammu Kashmir Coalition of Civil Society, accusing him of terrorism and secession under what is known as the “NGO terror funding case,” part of a broader probe launched in 2020 against JKCCS and other Kashmiri NGOs that has already drawn widespread international criticism, including from the UN Working Group on Arbitrary Detention. HRF points out that Mehraj’s reporting shows a consistent commitment to highlighting human rights issues in Kashmir — documenting everything from young women volunteering during the 2014 floods in Srinagar to the struggles of the Pandit community and ongoing abuses by authorities. “Holding a journalist and human rights defender like Irfan Mehraj under this case is a blatant violation of press freedom and human rights,” said Mary Aileen Diez-Bacalso, executive director of the Asian Forum for Human Rights and Development. His imprisonment, she added, appears to punish him for legitimate reporting and advocacy and reflects a wider pattern of silencing independent voices in Kashmir. “Alongside Khurram Parvez, his case underscores the authorities’ failure to uphold freedom of expression and meet international obligations.”

If Mehraj’s case feels familiar, it is because the same law keeps appearing. At the core of all these cases — Khalid, Johal, Mehraj, Parvez — is the Unlawful Activities Prevention Act, or UAPA, a terrorism prevention law with a provision allowing for very lengthy pre-trial detention. In practice, as Van Dijcke told The Express Tribune, the UAPA makes it much easier for Indian authorities to imprison dissidents because they do not have to go to official trial. Before Narendra Modi’s government came to power in 2014, the law’s use was negligible, but according to The Guardian, between 2014 and 2020, some 10,552 people were arrested under the UAPA. Among them was Khurram Parvez, detained in 2021 for documenting violence, torture, and enforced disappearances of Kashmiris by Indian armed forces. Among them was Umar Khalid, arrested for a speech. Among them is Irfan Mehraj, a journalist held for more than 1,000 days without trial.

Van Dijcke did not mince words in her interview with The Express Tribune earlier this year. India’s political freedoms have eroded, she said bluntly, and the country is no longer fully democratic. “We reclassified India from a democracy to what we call a hybrid authoritarian regime, a system that falls between a fully democratic and an authoritarian state.” Mehraj’s case, she added, is a clear example of where the judiciary and the legal system are failing. “He has been in detention, without any trial, for more than 1,000 days. That is something you will never see in a democracy, as the general rule in international law is that pre-trial detention should be as short as possible.”

The UN Working Group on Arbitrary Detention has put India on notice multiple times, and each time the government of India has offered no response, no defence, and no denial. The Express Tribune tried contacting various Indian government offices, including the External Affairs Ministry for comment, but each query was met with radio silence.

In Johal’s case, his imprisonment was first recognised by a UN panel as arbitrary detention four years ago. Since then, the activist from Dumbarton has claimed to have been tortured, something the Indian authorities have previously denied and have repeatedly maintained due process is being followed.

Now, the UN experts, according to a recent article published by the BBC, have sent a new communication about the case to the Indian authorities and said they will monitor developments. The ten experts, the British news organisation reported, are UN Special Rapporteurs, independent human rights specialists appointed by the UN Human Rights Council, and four members of the UN Working Group on Arbitrary Detention.

Ria Chakrabarty, senior policy director at Hindus for Human Rights, has been following these cases closely. She argues the government has weaponized anti-terror laws against its critics. “There’s no question,” she told the Express Tribune, “that it is harder to dissent in India today than it was 12 years ago.” Under Modi, she explained, these laws have been aggressively used against critics of Hindu nationalism, and disproportionately against Indian Muslims.

She pointed to a pattern that began even before the high-profile cases of Umar Khalid and Sharjeel Imam. The first big case, she said, was actually that of anti-caste and tribal activists who rallied at Bhima Koregaon in Maharashtra and were later attacked by Hindu nationalist mobs. Twelve leaders of the movement for the rights of caste-oppressed people and Adivasis were jailed for allegedly working with Maoists to overthrow the Modi government. The Supreme Court of India has slowly released most of them, she said, but one, Father Stan Swamy, a Jesuit priest, died in prison at the age of 84. Both the Supreme Court and the UN have judged that many of the detainees were held with no evidence of terrorism. “But this case is important to understand,” she said, “because then the Indian Home Ministry started using the same playbook against Muslim activists who would lead protests subjected to Hindu nationalist violence, and later, primarily Sikh farmers protesting farm laws.”

When Muslims protested the Citizenship Amendment Act, she explained, they were also protesting the core of the Hindu nationalist thesis that India should ever be anything but a secular republic. “Umar Khalid and Sharjeel Imam were arrested with dozens of others to silence criticism, not just of Modi, but of Hindu nationalism as a project,” she said. “That is the real pattern we see in the last 12 years of Modi’s government.”

On the judiciary, she said: “Right now, Indians have many questions about how much they trust the judiciary.” In the cases of Umar Khalid, Sharjeel Imam, and Irfan Mehraj, she told the Express Tribune, “the judiciary is undoubtedly trying to make an example out of these activists.” She noted that Khalid and Imam applied for bail alongside five others. The other five were granted very restrictive bail, but Khalid and Imam were denied. “The Supreme Court alleged that these two were the masterminds behind the Delhi riots in 2020,” she said, “but Umar was not in the city during the time of the violence, and the UN has deemed his detention arbitrary.”

At the heart of all this, she explained, is the Unlawful Activities Prevention Act, a law that has existed since 1967 and has been amended over the years to become increasingly draconian. “These laws are often called ‘no-bail laws’ because they allow long periods of pretrial detention, supposedly to prevent acts of terror,” she told the Express Tribune. “The UAPA has been amended in many ways to restrict people’s freedom of expression. These laws are written to undermine Indians’ rights to speedy and fair trials.” The numbers bear this out, she said. Less than five per cent of UAPA cases lead to conviction. A majority do not even go to trial. More than 10,000 people have been arrested under the UAPA. “During the arrest period, police are allowed to build a charge sheet to substantiate a terrorism allegation,” she explained. In 2020, more than half of UAPA investigations lasted over three years. During that time, people are usually detained in jail, and bail is very difficult to obtain. “Many Indian legal scholars and human rights defenders will often say that the UAPA process is the punishment because the law presumes the accused is guilty, and they have to prove their innocence.”

When asked about Hindu majoritarian ideology, she said: “It’s at the heart of how the current government approaches all criticism.” “When we say all of this, we are actually saying that the Rashtriya Swayamsevak Sangh (RSS) is trying to capture the institutions of Indian governance.” The Home Ministry, she told the Express Tribune, is now a political tool. Regardless of how individual police officers relate to the RSS or their personal politics, when the top law enforcement agency becomes a tool of Hindu nationalism, it influences the way all police forces work. She pointed to the Delhi riots case as a routine example. “Hindu nationalists will instigate violence in Muslim neighborhoods, and then authorities will arrest Muslim community leaders and bulldoze the homes and businesses in that area,” she said. “The government punished Muslim activists who protested a discriminatory law rather than the perpetrators of the violence that swept Delhi.”

Finally, asked what message she would deliver to Prime Minister Narendra Modi, Ria said: “India is a pluralistic country, and Hindu traditions at their best have long insisted that truth and the divine are encountered through many paths, many philosophies, and many forms. Criticism and diversity of thought are integral to both being a good Indian and being a good Hindu. India’s thousands of political prisoners deserve to be free, because they did what any good Indian should do: peacefully participate in the democratic process of dissent. Umar Khalid, Sharjeel Imam, Irfan Mehraj, and countless other political dissidents are not criminals for disagreeing with you, and as the leader of a diverse, secular republic, it is your constitutional duty to uphold the rights of people who disagree with you. A Hinduism that sees the sacred in multiplicity cannot be reconciled with a politics that fears diversity.”

The Express Tribune also reached out to Ahmed Adam from the Asian Forum for Human Rights and Development, who has tracked these cases from an international legal perspective and sees a deeper failure. In Adam’s opinion, the primary failure in Khalid’s case is not investigative sloppiness or judicial delay, it is the arrest itself. “He should not have been arrested at all,” he said. “And since his arrest, we have seen the entire legal and judicial system being weaponized against him. We see Khalid’s case as emblematic of not only a pattern of using anti-terrorism laws to silence dissent but also deliberate erosion of the rule of law and independent institutions such as the judiciary.”

On the question of whether prolonged pre-trial detention is becoming normalized in India, Adam said: “It is fair to say that we are seeing a growing pattern of prolonged pre-detention as a tool to silence critics in India.” He pointed to the UAPA’s restrictive bail conditions and lengthy investigations, noting that despite the law’s poor conviction rate, “the lengthy investigations and prolonged detention without trial become punishment itself for those targeted.”

When asked who should be applying pressure on India, Adam did not spare New Delhi’s democratic allies. “Disappointingly, we are seeing states and international institutions increasingly prioritizing political and economic interests and trade at the expense of human rights, protection of minorities, principles of rule of law and integrity of independent institutions.”

The Indian government has consistently ignored recommendations and opinions from UN human rights mechanisms, Adam pointed out, and has even openly attacked those mechanisms to dissuade scrutiny of its record. But he argued that UN opinions still matter. “One of their most important impacts is the international validation, legitimacy and visibility they bring to human rights defenders, activists and dissidents in such cases.” These opinions become crucial platforms for international solidarity, he explained. “They give detainees and their families hope and a feeling that they are not alone.”

Describing Khalid’s case as part of a clear pattern, Adam said human rights defenders, political activists, independent journalists, academics, lawyers, and dissidents are all being targeted for exercising their rights to freedom of expression, peaceful assembly, and association. This crackdown, he added, has come at a time of increasing persecution of religious minorities, particularly Muslims, as well as Dalits and Adivasis, driven by rising majoritarian and nationalistic political narratives. “These two trends are unraveling India’s democracy,” he warned. “The current BJP government is one of the first to successfully weaponize majoritarian narratives that vilified minorities, disinformation, and targeting of critics, and capture of independent institutions to gain and maintain power. Failure of the rest of the world to take note of this has led to proliferation of these trends across the world by authoritarians and aspiring authoritarians,” he cautioned.

That persecution of religious minorities, Adam explained, is not incidental. It is central to how the law is being used. “It is safe to say Muslims and Kashmiris have been disproportionately targeted, especially using anti-terrorism and national security laws such as the UAPA. This also follows the broader pattern of vilification and securitization of the entire Muslim community in India,” he concluded.