The Forever Prisoners

In the new millennium, the world order saw a tectonic change in terms of national insecurity in the wake of the terrorist attacks in America. A new era of State security legislation was ushered in first at an international level, consequently trickling down to domestic laws as well. The newly drafted security and counterterrorism laws thus created a landscape, where the State was endowed with massive powers of arrest and detention. These powers have been used, misused, and have been the central focus of several academic debates over the past two decades. While these academic debates have taken place, in the meantime, there have been several cases on the ground reality where these provisions have shown the damage they can do to basic civic and human rights. The research literature is rich on this issue, but what particularly stands out, are certain cases which seem to have no foundational basis at all, and yet, have allowed for the detention of individuals for years on end without any legal recourse. Ironically, these cases do not come from what is generally considered to be an ‘un-democratic’ nation, but from some of the most ‘democratic’ countries in the world. Two such ‘poster-childs’ for democracy, The United States of America, and India, have showcased over the past two decades just how counterterrorism and national security laws can bypass democratic safeguards and effectively detain an individual with no supporting ground whatsoever.

The first emblematic case of perpetual detention without charge or trial, was that of Abu Zubaydah, a stateless Palestinian who has been detained by the United States since March 2002 following his capture in Pakistan.^[1] Zubaydah was initially held by the U.S. Central Intelligence Agency (CIA) and transferred through a network of secret detention facilities, commonly referred to as ‘black sites.’ During this period, he was subjected to systematic secret detention and ‘enhanced interrogation techniques’, including waterboarding.^[2] In 2006, Zubaydah was moved to the U.S. Naval Station at Guantánamo Bay, Cuba, where he has remained till the present day.^[3] The critical and concerning aspect about Zubaydah’s detention is that despite his long confinement, Zubaydah has never been formally charged with a crime in a U.S. court or military tribunal. There has been no public evidence presented that he committed specific criminal acts warranting prosecution. His detention has been justified administratively under U.S. national security and military detention authorities rather than through criminal law channels.^[4] This is where a major departure from the fundamentals of natural justice is observed. The formal framing of charges in a court of law has till date not been carried out for Abu Zubaydah, more than 20 years after his detention, which in turn has set a concerning precedent in the realm of pretrial detention.

The framing of charges represents a critical juncture in the criminal justice process where allegations against the accused are formalized into a legal document. This procedural step transforms general accusations into specific legal violations that the prosecution must prove beyond reasonable doubt.^[5] A court of law only formally frames charges, and initiates a trial, if it is satisfied that there exists enough rudimentary or blatant evidence which makes it plausible that the accused committed the offence they are accused of. In other words, the court has to frame a charge only if there is a prima-facie, or basic case made out.^[6] The framing of charge is the formal acknowledgement from a court of law, that there exists sufficient evidence to allow the case to move forward to trial. It is helpful to bear in mind, that this is nowhere near to a conviction or acquittal, which determines whether the person is guilty or innocent. The very logic of this stage in criminal justice process, is to avoid putting an innocent person through the rigours and stress of a trial. The measure is essentially a preventive, one, aiming to avoid treating an individual adversely, if there is no evidence against them for the crime they are accused to have committed.

Placing this in the context of pretrial detentions, the very nature of such a practice, where an individual is detained for a prolonged period of time before a trial, is questionable in the face of legal logic. If the Court has not pronounced yet that there is enough material to move forward to a trial, on what basis can the State continue to detain such an individual? And yet, Abu Zubaydah remains under United States detention for over 20 years. The absence of a court order has kept Zubaydah behind bars without a trial. Multiple human rights experts, including United Nations special rapporteurs, have described his ongoing confinement as arbitrary and unlawful under international law, particularly in light of his lack of charges and the absence of a fair trial.^[7] All of this has been to no end. For all practical purposes, the absence of a Court order stating that there is no evidence or charge, instead of implying innocence, has turned to imply guilt instead, as the accused remains detained indefinitely, without a trial.

But what does ‘indefinite’ mean here? In the case of Abu Zubaydah, it has translated into more than two decades in a high detention prison facility. The initial reasoning for not prosecuting Zubaydah for trial was a calculated play of terminology, where he was termed “enemy combatant” , later termed an “unprivileged enemy belligerent” under the 2001 Authorization for Use of Military Force (AUMF) . The rationale was that such individuals associated with hostile forces may be detained to prevent their return to the battlefield, even absent criminal charges.^[8] This effectively served as bedrock argument for the case of preventive detentions instead of punitive detentions under the counterterrorism regime. In effect, the logic was that because certain individuals are deemed to be extremely dangerous to the State, it is justified to detain them as a preventive measure, rather than wait to take punitive action.

As flawed as this reasoning may be, even if it is taken at face value, a ‘prevention is better than punishment’ model of law necessitates the existence of higher level of safeguards to prevent misuse of such a model. In other words, if the State is to be given the power to detain someone before they have actually committed an offence, it should be upon the State to produce reasons and evidence which justify such a detention. Such evidence should also be of a particularly high standard and clearly display a plausible likelihood of the person committing the offence if left at liberty. Such reasonings are not only rooted in legal principles of natural justice, but also common sense. It is this burden and standard of proof which has been glaringly missing in cases such as that of Abu Zubaydah. While the power to detain has been exercised by the State, the requirements of proof and reasoning were never met, resulting in Zubaydah being termed the ‘forever prisoner’ by legal commentators.^[9]

A multitude of factors come together in the case of Abu Zubaydah which contribute to his perpetual pretrial detention, including territorial and jurisdictional questions of Guantanamo Bay, the contextual background of international terrorism, documented torture practices at detention facilities and the general lack of evidence itself, which will inevitably come to light should the case move to a trial. Such factors notwithstanding, Abu Zubaydah’s detention has set a dangerous precedent where a democratic State can detain an induvial without charge or trial, citing contextual factors while operating under the garb of counterterrorism.

This precedent can be observed in full manifestation in the present case of Umar Khalid in India. Umar Khalid was arrested in wake of riots which broke out in New Delhi in 2020. An avid critic and activist against the governing regime in India, Khalid was detained and charged under India’s counterterrorism law, the Unlawful Activities Prevention Act (UAPA) [2019].^[10] The context of his arrest is important to note here. Amid mass demonstrations against a restrictive citizenship law that targeted Muslims, a mob goaded by a local leader clashed with Muslims in the area. Over the next four days, violence swept through predominantly Muslim neighbourhoods; at least 53 people were killed and 14 mosques gutted.^[11] The charges against Umar Khalid essentially allege that he was the conspirator of the riots which took place in 2020, and that such riots were part of a ‘larger conspiracy’ aimed at regime change.^[12] Based on these allegations, Khalid was arrested under provisions of the UAPA for offences of terrorism among a plethora of offences including murder and rioting with a weapon.

Once again, common and legal sense would require that these allegations have some basis and credible evidence behind them in order to justify detention without a trial. Critically, this is not a case of preventive detention as in the case of Abu Zubaydah. There is no offence which is sought to be prevented, but the accused, Khalid, is being detained for suspicion of an offence which has already been committed. It is therefore punitive detention, without a trial. The duration for which Khalid has been held in such punitive detention without so much as a formal declaration of charges, is staggering and in blatant disregard of fundamental human rights and dignity. Arrested in September 2020, Khalid has remained in detention till the present day without a trial, which makes the current duration at almost 6 years. The concerning aspect of this is that there has been no formal framing of charges by a court of law in his case. Despite this, multiple attempts at release on bail have been rejected by the Court, citing either delays or procedural difficulties.^[13] Over the past five years, his bail applications have been denied at least four times by trial and appellate courts. His petition before the Supreme Court of India was adjourned at least 14 times in eleven months due to requests for adjournment by the state, scheduling delays, and judicial recusals, ultimately leading Khalid to withdraw his petition. In the latest order denying bail, the Delhi High Court described five years of his pre-trial detention as the “natural pace” of proceedings, despite the fact that the trial has yet to begin and the evidence has not been substantively examined. The Court further characterized Khalid’s speeches, mere membership in WhatsApp groups and his role in mobilising protests as part of a “well-orchestrated conspiracy” without demonstrating substantial links to the incitement of violence. These repeated bail denials combined with persistent delays, and the continued absence of trial proceedings, amount to a violation of his right to a fair trial, including speedy trial, guaranteed under the International Covenant on Civil and Political Rights (ICCPR), to which India is a state party, as well as under the Constitution of India.^[14]

In the latest update to Khalid’s case, the Supreme Court of India on January 5^th, 2026, finally found the time to deny his bail application, further extending his duration of imprisonment. The manner in which the Indian judiciary has treated this individual with no shred of evidence against him is deplorable and shameful in the face of civil society. Not only have the courts refused to look at the glaring void of evidence presented by the State, but also, a persistent pattern of deliberate prolonging of proceedings emerges, where instead of providing a straight answer, the Courts seem to somewhat maliciously avoid delivering a final answer to the bail proceedings itself. This results in the case being unable to move forward to the next stage of trial. In other words, if there indeed existed enough evidence of the grave offence of which Umar Khalid is accused, then the matter should be expedited and speedily moved to trial, so that such evidence can be produced. This has not happened till date. Persistent stalling by the State prosecution which has been enabled by the Judiciary, has stagnated the criminal process of Khalid’s case in the pre-trial stage, for 5 years and counting. On the contrary the State prosecution has been unable to produce sufficient evidence of the existence of the ‘larger conspiracy’ in the first place, let alone prove that Khalid was the lead conspirator.^[15]

To summarise, Umar Khalid remains in detention based on nothing but a mere allegation of a grave offence. An insidious cooperation between the State and the Judiciary has kept this individual in prison, stalling his criminal proceedings, not letting it get to the stage of trial. The reflections of Abu Zubaydah’s case become apparent in the case of Umar Khalid. An individual kept in detention on no substantiated charges, without a trial, under the garb of national security and counterterrorism. Even in the latest update of Khalid’s case, the Judiciary has finally mustered up the ability to exhaustively deny his bail application, something which apparently took 5 years to decide on. One would therefore expect that after 5 years of intense scrutiny and deliberation, there would be direct and concrete evidence, which clearly link him to the alleged offences, and justify his detention without a trial. Yet, just like in the case of Abu Zubaydah, a glaring and empty void exists where there should be tangible evidence. In October 2022, a former Supreme Court judge, three retired high court judges and a former federal home secretary wrote in a report on the riots that they found no substantiating evidence to warrant the imposition of terrorism charges against the activists.^[16] The Supreme Court, in blissful ignorance of such observations, found that the prosecution materials, “if accepted”, disclosed a prima facie case against Khalid. The Court noted that at this stage, it was not required to conclusively determine the credibility or admissibility of evidence, but only to assess whether reasonable grounds existed to believe in the truth of the accusations. The Court found that the material on record, including witness statements, call records, WhatsApp messages, and documentary evidence regarding speeches and mobilization activities, cumulatively created reasonable grounds for such belief.^[17] There are several problematic aspects to this. First, the detention of an individual is being hinged on materials by the prosecution which may not be accepted in a court of law in the first place. By the Court’s own admission, Khalid’s detention may be permitted based on evidence which is not credible and inadmissible. Such an absurd departure from legal and basic sense requires reiteration: An individual can be held in detention based on evidence which is potentially inadmissible in a Court of law. This is the deep pit where the Indian Judiciary currently lies. Furthermore, such evidence need not even build up a proper case or  establish a reasonable link between the accused and the offence but only be sufficient to ‘believe the truth of the accusations’. To reiterate; 5 years in detention, based not on evidence good enough to prove, but sufficient enough for a ‘belief’.

The case of Umar Khalid, being persistently denied his liberty based on nothing but allegations thrown in the air, is chillingly analogous to the case of the ‘forever prisoner’, Abu Zubaydah. But one question remains in the midst of all this academic debate; why? Why would a State arbitrarily detain an individual, when there is such a blatant, and visible lack of evidence against them? Why does the State require a ‘forever prisoner’? The answer is actually quite simple; fear. The ‘forever prisoner’ acts as a bogeyman against dissent, against all those ‘daring’ to question the State, and a grotesque display of the restrictive power of an authoritarian government. Forever prisoners like Khalid and Zubaydah act as reminders to the general population that the State seeks to subdue, a reminder that if the State wishes, it has the potential to unleash such powers against every single individual of the country. Evidence does not matter, legal norms do not matter, human rights, do not matter. That is the message being sent through the detention of these individuals. Such a climate of fear inevitably chills dissent to a large extent. Observations and concerns for Umar Khalid in India have primarily been expressed from foreign actors, simply because domestic actors are too scared of a similar fate for themselves.^[18] Khalid’s case will drag on for years to come, with the Supreme Court’s wisdom directing him to reapply after one year, seems to normalise his pretrial detention at this point.^[19]

And yet, the mechanisms of the State in India have already been mobilised in creating another such ‘forever prisoner’. In September 2025, exactly 5 years after Umar Khalid was arrested, the government arrested Sonam Wangchuk under the National Security Act (NSA), another arm of India’s counterterrorism regime. The circumstances of Wangchuk’s arrest are also eerily similar to that of Umar Khalid. Wangchuk was arrested two days after violent protests demanding statehood and Sixth Schedule status for Ladakh left four people dead and 90 injured in the Union territory. The government had accused him of inciting the violence.^[20] Once again, this detention order is founded upon stale police reports, vague imputations, and speculative assertions, and lacks any live or proximate connection to the purported grounds of detention.^[21] Wangchuk’s bail hearing has been brought before the Supreme Court of India, which has begun to show a similar attitude as it has with Khalid. In December, the Court deferred the hearing of the case to January 7^th, 2026, citing “paucity of time”.^[22] It remains to be seen at the time of writing this article, whether the Supreme Court is able to find the precious time to hear the case of Sonam Wangchuk, or whether we are witnessing the birth of a new ‘forever prisoner’. One thing remains clear, the forever prisoner will continue to exist as a reminder that even in democratic systems, personal liberty remains at risk from authoritarian and fascist forces.

^[1] United Nations - OHCHR , ‘Experts Call for Release of Guantánamo Bay Detainee Abu Zubaydah, Arbitrarily Detained for over Two Decades’ (United Nations 8 January 2025) <https://www.ohchr.org/en/press-releases/2025/01/experts-call-release-guantanamo-bay-detainee-abu-zubaydah-arbitrarily>.

^[2] ‘Extraordinary Rendition and Torture’ (Human Rights in Practice 2025) <https://www.rightsinpractice.org/extraordinary-rendition>.

^[3] ‘An Interview with Helen Duffy on the Situation of Detainees at Guantanamo Bay’ (International Centre for Counter-Terrorism - ICCT 2025) <https://icct.nl/publication/interview-helen-duffy-situation-detainees-guantanamo-bay>.

^[4] Julian Borger, ‘Joe Biden under Pressure to Release “Forever Prisoner” from Guantánamo Bay’ (The Guardian 13 January 2025) <https://www.theguardian.com/us-news/2025/jan/13/joe-biden-under-pressure-to-release-forever-prisoner-from-guantanamo-bay>.

^[5] ‘Framing of Charges in Criminal Trials: A Critical Step for Legal Clarity’ (The Law Institute 15 December 2023) <https://thelaw.institute/criminal-justice-system/framing-charges-criminal-trials-legal-clarity/>.

^[6] M Chandrasekhara Reddy, ‘Framing of Charges’ (2025) <https://cdnbbsr.s3waas.gov.in/s3ec03333cb763facc6ce398ff83845f22/uploads/2025/12/2025121159.pdf> 

^[7] United Nations - OHCHR , ‘Experts Call for Release of Guantánamo Bay Detainee Abu Zubaydah, Arbitrarily Detained for over Two Decades’ (United Nations 8 January 2025) <https://www.ohchr.org/en/press-releases/2025/01/experts-call-release-guantanamo-bay-detainee-abu-zubaydah-arbitrarily>.  

^[8] 107th Congress, ‘Public Law 107–40—" Joint Resolution to Authorize the Use of United States Armed Forces against Those Responsible for the Recent Attacks Launched against the United States."’ (United States Congress 2001) <https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf>.

^[9] Ed Pilkington, ‘“The Forever Prisoner”: Abu Zubaydah’s Drawings Expose the US’s Depraved Torture Policy’ The Guardian (11 May 2023) <https://www.theguardian.com/law/2023/may/11/abu-zubaydah-drawings-guantanamo-bay-us-torture-policy>; ‘Extraordinary Rendition and Torture’ (Human Rights in Practice 2025) <https://www.rightsinpractice.org/extraordinary-rendition>.  

^[10] United States Commission on International Religious Freedom (USCIRF), ‘Umar Khalid ’ (USCIRF 2023) <https://www.uscirf.gov/religious-prisoners-conscience/forb-victims-database/umar-khalid>.

^[11] Sonia Faleiro, ‘Umar Khalid Challenged Modi’s Anti-Muslim Agenda. India Accused Him of Terrorism and Locked Him Up.’ (The Intercept 6 August 2023) <https://theintercept.com/2023/08/06/umar-khalid-india-modi/>.

^[12] Nirbhay Thakur , ‘2020 Delhi Riots “Larger Conspiracy”: Year after Court Ordered Day-To-Day Hearings, Where Does the Case Stand?’ (India Academic Freedom 12 September 2024) <https://www.indiaacademicfreedom.net/news/2020-delhi-riots-larger-conspiracy-year-after-court-ordered-day-to-day-hearings-where-does-the-case-stand>.

^[13] Nirbhay Thakur, ‘2020 Delhi Riots “Larger Conspiracy”: Year after Court Ordered Day-To-Day Hearings, Where Does the Case Stand?’ (The Indian Express 12 September 2024) <https://indianexpress.com/article/cities/delhi/2020-delhi-riots-year-court-ordered-delayed-hearings-hearings-9563096/>.

^[14] ‘India: Joint Statement Urging Indian Authorities to Immediately and Unconditionally Release Human Rights Defender and Student Activist Umar Khalid’ (International Commission of Jurists 12 September 2025) <https://www.icj.org/india-joint-statement-urging-indian-authorities-to-immediately-and-unconditionally-release-human-rights-defender-and-student-activist-umar-khalid/>.

^[15] Umang Poddar, ‘Delhi Riots 2020: Why Many Police Cases Are Falling Apart’ BBC (27 February 2025) <https://www.bbc.com/news/articles/c757zl67n7wo>.

^[16] Geeta Pandey and Abhishek Dey, ‘Umar Khalid, Sharjeel Imam: No Bail for Indian Activists after Five Years in Jail without Trial’ BBC News (5 January 2026) <https://www.bbc.com/news/articles/cd0ye2z33x9o>.

^[17] Siddhant Kuwad, ‘Supreme Court Upholds Stringent Bail Standards: Umar Khalid and Sharjeel Imam Denied Liberty in Landmark Delhi Riots Case’ (Edu Law 5 January 2026) <https://www.theedulaw.in/content/news/309/SUPREME-COURT-UPHOLDS-STRINGENT-BAIL-STANDARDS:-UMAR-KHALID-AND-SHARJEEL-IMAM-DENIED-LIBERTY-IN-LANDMARK-DELHI-RIOTS-CASE>.

^[18] ‘US Lawmakers Write to Indian Ambassador Expressing Concern over Umar Khalid’s Prolonged Detention - the Wire’ (The Wire 2 January 2026) <https://thewire.in/rights/us-lawmakers-write-to-indian-ambassador-expressing-concern-over-umar-khalids-prolonged-detention>.

^[19] Brajesh Mishra, ‘“Delay Is No Defense”: Why SC Kept Umar Khalid in Jail after 5 Years’ (Bigstory Network 5 January 2026) <https://bigstorynetwork.com/content/delay-is-no-defense-why-sc-kept-umar-khalid-in-jail-after-5-years>.

^[20] ‘Sonam Wangchuk Detention: Supreme Court Adjourns to Jan. 7 Hearing on Wife’s Plea’ (The Hindu 15 December 2025) <https://www.thehindu.com/news/national/sonam-wangchuk-detention-supreme-court-adjourns-to-jan-7-hearing-on-wifes-plea/article70398763.ece>.

^[21] Ibid

^[22] Ibid