The Process is the Punishment, How Judicial Delay and Statutory Overreach Are Eroding Liberty in India
The continued detention of Sonam Wangchuk, the renowned Ladakhi climate activist, since September 2025, is not merely a headline; it is a chilling symptom of a profound constitutional malaise. As outlined in the incisive analysis by lawyer Kaleeswaram Raj, Wangchuk’s case, viewed alongside the Supreme Court’s recent denial of bail to Umar Khalid and Sharjeel Imam, exposes a dangerous and systemic corrosion of India’s legal foundations. This corrosion is not happening through dramatic overturns of the Constitution, but through the slow, procedural suffocation of its core guarantees. The crisis manifests in the judicial process itself, where delay, expansive statutory interpretation, and a departure from precedent become tools to deny, rather than deliver, justice. When a writ of habeas corpus—the most ancient and potent legal remedy against unlawful detention—can be stretched over months of adjournments, and when bail under draconian laws becomes a theoretical possibility rather than a practical right, we are witnessing a fundamental shift. Liberty is ceasing to be a constitutional guarantee and is becoming a conditional privilege, granted or withheld based on the identity of the dissenter and the political sensitivities of the state.
The cases of Umar Khalid and Sharjeel Imam, as adjudicated in Gulfisha Fatima v. State, serve as a critical precedent for understanding this shift. Arrested under the stringent Unlawful Activities (Prevention) Act (UAPA) and other statutes for their alleged roles in the 2020 Delhi protests, they sought bail after nearly five-and-a-half years of incarceration. The Supreme Court’s judgment is a landmark, but for all the wrong reasons. It represents a radical judicial abdication of its role as the protector of personal liberty. The court’s “expansive interpretation” of Section 15 of the UAPA effectively held that activities like roadblocks during protests could be construed as “terrorist acts.” This semantic inflation dilutes the grave, specific intent of anti-terror legislation, weaponizing it against political protest and dissent.
More alarmingly, the two-judge bench in Gulfisha Fatima effectively overruled—without explicitly saying so—the humane and liberty-oriented precedent set by a larger, three-judge bench in Union of India v. K.A. Najeeb (2021). In Najeeb, the Court held that prolonged incarceration itself, and the consequent violation of the right to a speedy trial (a fundamental right under Article 21), could be grounds for granting bail even under the UAPA. The Gulfisha bench ignored this, and also disregarded the principle from Sheikh Javed Iqbal v. State of Uttar Pradesh (2024), which stated that the prosecution cannot even oppose bail if the trial is inordinately delayed. The most egregious element, however, was the court imposing a judicial moratorium: forbidding Khalid and Imam from filing a fresh bail application for a year. This is a direct contradiction of established jurisprudence (e.g., Parvinder Singh v. State of Punjab, 2003) that upholds an accused person’s right to seek bail repeatedly if circumstances change. The message is clear: the process is not a path to justice, but a labyrinth designed to perpetuate punishment without conviction.
The trajectory of Sonam Wangchuk’s habeas corpus petition reveals the same pattern, applied through a different legal mechanism: preventive detention. Wangchuk’s wife, Gitanjali Angmo, moved the Supreme Court under Article 32 immediately after his arrest, arguing that his detention was legally vitiated. The grounds were stark and constitutionally fundamental: a violation of Articles 22(1) and 22(5), which mandate that a detained person be informed of the grounds of arrest with “full particulars” and be given an opportunity to make a representation. The state allegedly failed to supply the very videos on which the detention order was based. The petition argued that the District Magistrate’s order showed no application of mind, relying on FIRs against unknown persons and outdated documents. In court, Wangchuk’s own video calling for peace was played, challenging the state’s narrative of threat.
Despite these apparent and serious constitutional infirmities, the Supreme Court’s response has been one of procedural paralysis. The petition, meant for swift adjudication—potentially resolvable in “a few days, if not hours”—has been dragged through repeated adjournments granted to the Centre. Wangchuk has remained in detention for over 120 days while the court deliberates on the legality of the detention itself. This delay is the punishment. It neutralizes the habeas corpus writ, transforming it from a swift sword that cuts through unlawful custody into a blunt instrument that validates prolonged incarceration through judicial inaction. The “fragile narrative” of threat, as Raj terms it, is sustained not by evidence tested in a trial, but by the sheer inertia of the legal process.
This judicial behavior must be understood not in a legal vacuum, but within its political context, a connection the article rightly insists upon. The accused in these cases—Khalid, Imam, Wangchuk—are united by their role as prominent dissenters who “dared to challenge the regime at the Centre.” Wangchuk’ activism for Ladakh’s statehood and ecological preservation, and Khalid and Imam’s involvement in protests against the Citizenship Amendment Act, placed them in direct opposition to central government policies. The legal process, in these instances, appears co-opted into a larger project of dissent management. The UAPA and preventive detention laws provide the statutory architecture, while judicial delay and restrictive bail jurisprudence provide the operational mechanism. The outcome is a form of “lawful lawlessness,” where the formalities of law are observed to undermine its spirit.
This phenomenon reflects a global crisis in liberal democracy, where the rule of law is weaponized into rule by law. As scholar J.A.G. Griffith argued in The Politics of the Judiciary, the idea of perfect judicial neutrality is a myth; judges operate within a social and political context. In times of perceived national stress or majoritarian consolidation, courts often defer to the executive, eroding rights in the name of security or public order. The Indian Supreme Court’s current trajectory in these cases echoes Griffith’s skepticism and validates Murray Rothbard’s lament about the state’s coercive nature subsuming the legal system. The “chilling effect” created is profound. It signals to every activist, journalist, and citizen that challenging state power can lead not just to arrest, but to a legal black hole—a process where years of one’s life can be consumed without a verdict, and where constitutional remedies are rendered impotent through delay.
The implications for Indian democracy are dire. The health of a democracy is measured not by the rights enumerated in its constitution, but by the vigor with which its institutions protect those rights for its most vulnerable critics. When the Supreme Court, the ultimate guardian of fundamental rights, becomes a site where liberty is procedurally strangled, it strikes at the foundational contract between the state and the citizen. It creates a two-tiered system: one for the politically compliant, where legal processes function normally, and another for dissenters, where the process itself becomes an instrument of punitive containment.
The way forward demands courage—from the judiciary, the bar, and civil society. The judiciary must re-embrace its constitutional duty as a counter-majoritarian institution. It must rigorously enforce the Najeeb precedent on prolonged incarceration, strictly scrutinize the use of UAPA and preventive detention to ensure they are not used for political vendetta, and treat habeas corpus petitions with the urgency the Great Writ demands. The legal community must continue its forensic and public critique of judgments that undermine liberty, keeping the spotlight on procedural injustice. Civil society must recognize that the assault on the liberties of a Khalid, an Imam, or a Wangchuk is an assault on the liberties of every citizen. The detention of a climate activist fighting for ecological preservation or of students protesting a law ultimately diminishes the space for all public-spirited action.
Sonam Wangchuk’s ongoing detention is a bellwether. It tests whether the Indian republic still believes that liberty is an inalienable guarantee, or whether it has accepted that it can be suspended indefinitely through a slow-moving legal process for those who speak inconvenient truths. The answer will define not just the fate of one activist, but the character of the nation itself.
Q&A: Judicial Process and the Erosion of Liberty
Q1: How does the Supreme Court’s judgment in the Gulfisha Fatima case (denying bail to Umar Khalid and Sharjeel Imam) represent a break from established legal principles?
A1: The judgment represents a multi-faceted break from precedent and principle. First, it expansively interpreted the UAPA’s definition of a “terrorist act” to include protest activities like roadblocks, dangerously broadening the law’s scope. Second, it implicitly overruled the K.A. Najeeb (2021) precedent, which held that prolonged incarceration itself could be grounds for bail under UAPA. Third, it ignored the Sheikh Javed Iqbal (2024) principle that the prosecution cannot oppose bail if trial delay is excessive. Most egregiously, it imposed a one-year moratorium on fresh bail applications, directly contradicting established rights (Parvinder Singh, 2003) and turning the bail process into a dead end rather than a remedy.
Q2: In the Sonam Wangchuk case, what specific constitutional violations were alleged in the habeas corpus petition, and how has the judicial response compounded the problem?
A2: The petition alleged clear violations of Articles 22(1) and 22(5) of the Constitution: Wangchuk was not supplied with the videos forming the basis of his “preventive detention” order, denying him the “full particulars” of the grounds and a meaningful chance to contest them. It also argued the detention order was non-applicable of mind, relying on irrelevant materials. The judicial response—granting repeated adjournments to the Centre over more than 120 days—has compounded this by neutering the habeas corpus remedy itself. Designed for swift action, the writ has been stalled, allowing unlawful detention (if proven) to continue indefinitely via procedural delay, making the process a tool of punishment.
Q3: The article argues that analyzing these cases without their political context is “deceptive.” What is that context, and how does it shape the legal outcomes?
A3: The political context is that the individuals involved—Khalid, Imam, Wangchuk—are high-profile dissenters who have publicly challenged central government policies (the CAA/NRC protests, Ladakh’s statehood and environmental policies). The legal cases against them are not isolated criminal matters but are intertwined with their political speech and activism. This context shapes outcomes by creating an environment of judicial deference to the executive’s “national security” or “public order” narratives. The courts, perhaps fearing political backlash or subscribing to a majoritarian impulse, appear to apply stricter standards, allow procedural delays, and interpret draconian laws expansively when the accused are political opponents of the regime, effectively weaponizing the legal process against dissent.
Q4: What is the “chilling effect” created by the combination of laws like the UAPA and the observed judicial behavior?
A4: The “chilling effect” is the profound deterrence of legitimate democratic activity. When activists see that dissent can lead to arrest under loosely defined “terror” laws, followed by half a decade in jail without bail and a judiciary that delays or denies relief, they are forced to self-censor. The message is clear: challenging state power carries an extreme risk of being trapped in a punitive legal process with no foreseeable end. This stifles not just the individuals targeted but the entire ecosystem of protest, advocacy, and watchdog journalism, shrinking the democratic space and creating a climate of fear where citizens opt for silence over engagement.
Q5: According to the article’s references to thinkers like Rothbard and Griffith, what is the deeper institutional crisis revealed by these cases?
A5: The cases reveal a crisis in the separation of powers and the myth of judicial neutrality. Murray Rothbard’s view of the state as inherently coercive and parasitic suggests the legal system can be subsumed to serve state power rather than check it. J.A.G. Griffith’s thesis on the political nature of the judiciary finds validation here. The crisis is that the institution designed to be the bulwark against executive excess—the judiciary—is, in critical cases involving political prisoners, becoming an instrument of that excess through process and interpretation. This negates the very rule of law, replacing it with “rule by law,” where legal forms are used to achieve illiberal ends, undermining democracy from within its own protective structures.
