Terms like “freedom of speech,” “freedom of expression,” “Article 19” or even a simple “free” do not even find a mention in the Supreme Court’s January 5 judgement in the bail applications for the student and youth activists accused in the 2020 Delhi Riots conspiracy case, even though the entire case rests on one’s right to political dissent – a facet of free speech.
A quick search of the 142-page judgement, delivered by a bench comprising Justices Aravind Kumar and NV Anjaria, finds these key words missing. Instead, the judgement expanded the contours of terrorism. Further, it created two categories of accused – leaders and followers. Researchers Umar Khalid and Sharjeel Imam were designated as “architects” of the conspiracy and denied bail, whereas student activist Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan and Shadab Ahmed were granted bail under stringent censorial conditions. All of them have been in jail since 2020.
While freedom of speech and the right to political dissent are significant contextual elements in the judgment, the Supreme Court explicitly clarified that they are not the core legal issues determining the outcome of the bail applications.
Critics, however, argue that the top court’s judgment sets a dangerous precedent by classifying political dissent and protest speeches as acts of terrorism.
Conditional freedom that robs the right to speak
Supreme Court imposed strict conditions while granting bail to the Fatima, Rehman, Khan, Haider and Ahmed. Apart from the ₹2 lakh personal bond each with two local sureties of the like amount, the top court also gagged the five activists from speaking about any issue from any platform after their release.
Conditions also include that they are:
- Required to stay within the territorial limit of Delhi NCT for the pendency of the trial. Not allowed to leave the city without court’s permission. Any request for travel shall disclose reasons, which would then be considered by the trial court “strictly” on its “merits”
- Surrender passports if any. If there is no passport, then an affidavit to be filed to that effect. Furthermore, immigration authorities have been direction to prevent any exit from the country without the court’s permission
- Twice weekly check-ins at the Delhi Police Crime Branch police station. The police are then required to submit monthly attendance reports to court; Furnish full current address and all contact details with the investigating officer of the case. there must be a seven-day notice before any change to the same.
- Co-operate during the trial, appear at every date unless exempted by court and ensure they don’t act in any way to delay the same
- No witness tampering, or any contact with them at all – direct or indirect. Not allowed to participate in the activities of any group or organization linked to the subject matter of the present FIR/ final report
- Complete media gag
- Gag on attending any rallies – political or otherwise, physically or virtually till the conclusion of the trial
- Not allowed to distribute any posts, handbills, posters, fliers, banners
- “Maintain peace and good behavior.” Violation of this condition gives the police “liberty” to seek revocation of bail
UAPA comes a full circle
The Supreme Court’s judgment in Gulfisha Fatima vs State (2026 INSC 2) represents a ‘coming to a full circle’ moment for the Unlawful Activity (Prevention) Act (UAPA), 1967. The UAPA, which was originally meant to address “secessionist” activities, was later amended and rebranded as India’s anti-terror law.
Around 1962-63, the then Prime Minister Jawaharlal Nehru envisioned UAPA to act as a deterrence against secessionist ideologies and preserve national integration. In the backdrop of the 1965 India-Pakistan war, UAPA was primarily intended to tackle the strong secessionist movement in Tamil Nadu which wanted to be a sovereign state. It was followed by a series of preventive detention laws and, when India signed and ratified all major United Nation counter-terrorism conventions after 9/11, the UAPA was specifically amended in 2004 to align with the country’s international obligations.
The law, in its current avatar, is so vast and vague, that even expressing disaffection towards the state or affection for another state, as in the case of the three Kashmiri youth who were jailed under sedition charges for allegedly cheering for Pakistan’s cricket team when it won the 2021 T20 World Cup, is liable for prosecution.
When protest becomes an act of terrorism
Can protest speeches, public meetings and WhatsApp group membership constitute conspiracy under Sections 16–18 of the UAPA at the bail stage?
According to the Supreme Court: Yes, they can. Even if the protests were peaceful assemblies.
The Supreme Court’s January 5 judgement essentially redefined terrorism. Even though the judgment recognized freedom of speech as a protected right, it stopped where an allegedly pre-planned conspiracy for systemic violence began. Ironically, cases against BJP politicians like Kapil Sharma, who made incendiary speeches on the eve of the breakout of violence in Delhi in 2020, continue at a snail’s pace,
Yet, the January 5 judgement read: “The factual record placed by the prosecution repeatedly returns to a distinction that is central to the case: the differentiation between a conventional dharna and a chakka jam. This is not treated as semantics. It is treated as strategy.”
“A dharna may be expressive; a chakka jam, as alleged, is disruptive by design. The prosecution case is that the sustained choking of arterial roads, replication of blockade sites, and the movement of crowds from minority clusters into mixed population areas were not accidental expressions of dissent, but calibrated acts meant to generate confrontation, overwhelm law enforcement, and create conditions for violence,” it added.
The top court said Delhi Police did not rely on a “single speech, a single meeting, or a single blockade” to oppose bail, rather it relied on “a course of conduct, spread over weeks, involving repeated meetings, formation of coordinating bodies, issuance of directions, and alleged preparations for escalation.”
“The Court cannot, at the bail stage, segregate this course of conduct into isolated benign fragments and assess each in abstraction,” the judgment read.
The Supreme Court reiterated that “dissent and protest occupy a protected space in a constitutional democracy,” however, that protection does not extend to a design that involves “systemic disruption, engineered confrontation, and preparatory steps towards violence”.
“At this stage, the Court must resist from committing two errors. The first is to criminalise speech merely because it is politically charged. The second is to immunize a continuing course of conduct merely because it contains language of non-violence,” the judgment read.
“In the application of such law, the Court does not proceed on identity, ideology, belief, or association. It proceeds on role, material, and the statutory threshold governing the exercise of jurisdiction,” the judgment read. “…[the judgment] neither endorses the prosecution case nor prejudges the guilt of any accused,” the court said adding that it applied the law as it stands, “recognising that individual liberty must be protected, but that it must also withstand the legitimate demands of national security and collective safety.”
“This balance is not a matter of preference rather it is a matter of constitutional duty,” the court added.
Selective application of law
While the Supreme Court’s judgment could be seen as a mixed bag of relief for some accused, in the denial of bail to Imam and Khalid, the top court selectively applied its own judgement and those of the high court on free speech or even bail under section 43d of the UAPA.
In cases like Vernon Gonzalves, Shoma Sen, Arvind Kejriwal, Manish Sisodia, Javed Gulam Nabi Shaikh, Sheikh Javed Iqbal, the top court granted bail due to prolonged incarceration despite the bar under section 43D of the UAPA act.
On free speech, the Supreme Court in its 2015 Shreya Singhal judgment said that dissenting discourse is not a crime. In its Balwant Singh judgment, the court emphasized that shouting stray slogans like “Khalistan Zindabad” were not a crime.
In fact, the Delhi High Court granted bail to student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha—co-accused in the 2020 Delhi Riots conspiracy case—and pulled up the Delhi Police for its “wanton use” of the UAPA.
In this case, the High Court clearly stated: “… in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.”
“… the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less,” it added.
Process is the punishment
In the past decade, the State (or corporations) has often been accused of (mis)using the law to stifle dissent. In effect, making the process of law the punishment. Sedition (the old and new avatar), UAPA, defamation, Copyright Act are all being used against free speech.
The NewsClick founder editor Prabir Purkayastha was charged under the draconian UAPA for publishing “propaganda” reports on China that allegedly served to endanger the “sovereignty, unity and security of India.” He secured bail after seven months in custody after the Supreme Court held that his arrest was “invalid in the eyes of the law.”
Sedition, in its new avatar, has been used against climate activist Sonam Wangchuk, Ashoka University professor Ali Khan Mahmudabad, stand-up comic Kunal Kamra, satirists Madri Kakoti and Shamita Yadav better as Dr Medusa and Ranting Gola respectively, Bhojpuri singer Neha Singh Rathore, TV star and Big Boss winner Akhil Marar, a 20-year-old autorickshaw driver Sahil Khan and even Pushpa Sathidar, wife of the late actor Vira Sathidar, who was booked for merely reciting the acclaimed Faiz Ahmed Faiz poem ‘Hum Dekhenge’ at a meeting.in Nagpur in May 2025.
Even after sedition cases are dropped, the punishing process does not end, as the ordeal of Manipuri journalist Kishore Wangkhemcha, booked for speaking out about the struggles of leaders of Manipur or film maker Aisha Sultana, charged for criticising the Lakshadweep administrator, bears out..
Clearly, the price of dissent and critical thought is extremely high. And now, a Supreme Court order penalises peaceful protest and expression as acts of terror, effectively putting an undemocratic premium on the freedom to speak freely.
*About the Author: After an almost decade-long career as a photojournalist in Mumbai, Ritika now covers the Indian judiciary and hopes to simplify the law and decode the judiciary. Now based in Delhi, Ritika is a writer, part-time dreamer & full-time K-drama addict who escapes the city when she’s not bingeing on K-dramas.
Courtesy: Free Speech Collective