The DHC judgement rejecting the Bail Appeals of the political prisoners in the larger Delhi pogrom conspiracy case is an indent in the bail jurisprudence of India. One that finds the conscience of law in conflict with the sociology of law.

The Delhi High Court in its judgement dated September 2nd, 2025, rejected a batch of Bail Appeals in the 2020 Delhi Riots conspiracy case. The appellants namely Sharjeel Imam, Umar Khalid, Athar Khan, Abdul Khalid Saifi, Mohd Saleem Khan, Shifa Ur Rehman, Meeran Haider, Gulfisha Fatima and Shadab Ahmed have been incarcerated without trials for five years now. The judgement reserved on July 9th, 2025 and pronounced on September 2nd, 2025 is a hammer to shape the bail jurisprudence of India.

The ‘common argument raised and emphasised’ across all appeals is the prolonged incarceration of the undertrials. Placing on record the need to strike a balance between personal liberty and the right of prosecution to establish a case, the Court calls it an ‘arduous task’. The balance of both considerations are particular to the facts of the case and that there is no universal applicability of the same. ‘It is trite law that “grant of bail is the rule and refusal is the exception”, however, the exercise of such discretion will depend on the facts and circumstances of each case, and no single circumstance alone can serve as a universal yardstick to grant or refuse bail to an individual.’ (Para 20, page 19)

The Court also evaluates the parameters of bail provision under special statutes being rigid but not limiting the discretion of Constitutional Courts. And eventually rests on the ‘twin prong test’, the ‘prima facie’ case established  and ‘surface analysis’ of the evidence to reject the bail appeals. It is repeatedly mentioned that the allegations of conspiracy being severe cannot be brushed aside, hence the appeals don’t stand any merit and thereby don’t succeed (Para 141, 148, 228, 293, 332).

Rooted in law, the judgement falls victim to logical fallacy. It is the conscience of law that enumerates the said plight of the appellants and recognises the fundamental right to speedy trial of the undertrials, under the Article 21 of the Constitution of India. Adjudication is a conscious exercise that binds the parties at dispute specifically and lays down principles for similar sets of facts generally. It is an endeavour of moving from specificities to abstractness. It is an endeavour guided by principles rooted in law and survived by logical reasoning. It does not give into the frenzy of notions afloat. The judicial discretion to adjudicate is not absolute but rather limited. This limitation is the conscience of law. In the words of Benjamin Nathan Cardozo, The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.^[i]

In Para 32 of the Judgement, the Delhi High Court referring to Naval Kishore Kapoor v. NIA, 2025 SCC OnLine Del 1561 recognises the balancing of ‘long period of incarceration and the delay in trial vis-à- vis the right of an accused to a speedy trial and liberty’, highlighting that serious offences necessitate the Prosecution to expedite trial. ‘Also, when a trial is prolonged, it is not open to the Prosecution to oppose the bail application. However, in particular facts of a given case, the Constitutional Court may also decline to grant bail.’ (Naval Kishore Kapoor v. NIA, 2025 SCC OnLine Del 1561, Para 71). The case also highlights that for the grant of bail the rigours are stricter in cases where charges have been framed.

This reference by the Court is a hopeful respite opening the window to its consciousness. But the hope is extremely short-lived. The sociology of law coming into play stands in a direct conflict with its conscience.

In Para 147, the judgement lauds the efforts of the investigating agency for having ‘made earnest efforts to unearth the alleged deep-rooted conspiracy, as is evident from the undisputed fact that the chargesheet runs into more than 3,000 pages, with an additional 30,000 pages of electronic evidence.’ It presumptuously forms a firm ground for rejecting the appeals of Sharjeel Imam and Umar Khalid, as the Para 147 of the judgement further mentions that ‘…the pace of the trial will progress naturally. A hurried trial would also be detrimental to the rights of both the Appellants and the State. The parties have informed this Court that the trial is currently at the stage of hearing arguments on the framing of charges, thus, it indicates that the case is progressing.’ Through the non-recognition of procedural delays the judicial system refuses the appellants a fundamental chance to a fair trial, recusing itself from even a mini trial at that. The judgement mentions that ‘a comprehensive examination of evidence at this stage may adversely affect the trial’ and that ‘A mini trial at the stage of consideration of bail is impermissible.’ (Para 224) and then reiterates the same ‘…a mini-trial is impermissible at this stage. This Court is conscious of that position of law.’ (Para 286)

Law does not exist in vacuum, it sprouts from and is shaped by the notions of the society. When collective and popular sentiment precede logical conclusions, indefinite incarceration and undue procedural delays are overlooked as part of the naturally tedious litigation process. ‘Large numbers and bulky paperwork are indicative of the gravity of offences’- it is this rudimentary knowledge of the society at large and the public in general that shadows legal determinants closely here. As extensive chargesheets and myriad recorded evidence surge, the wheels are presumed to be in motion towards trial. It long outweighs the tenets of fair trial more literally than realistically. As it seems, the judicial discretion in the revered High Court’s judgment trails the narrow line of buying into the popular sentiment of incarcerating political prisoners.

^[i] William J. Brennan, Jr., Reason, Passion and “The Progress of the Law,” in 3 Association of the Bar of the City of New York, The Benjamin N. Cardozo Memorial Lectures 1439 (1995); https://history.nycourts.gov/biography/benjamin-nathan-cardozo/