On March 8, as Palestinian protestor Mahmoud Khalil was being detained by U.S.’s federal immigration authority, Umar Khalid completed 1538 days in jail without trial. The U.S. under Trump and India share, clearly, a common authoritarian vision where national security laws can easily dismantle constitutional protections on free speech to stifle political dissent.
THE recent arrest of Mahmoud Khalil in the United States, an active member of Columbia University’s protests against the ongoing genocide in Gaza, takes me back to 2016 when student political leaders Umar Khalid, Kanhaiya Kumar and Anirban Bhattacharya were arrested by the Delhi Police on charges of sedition.
A controversy had stemmed from an alleged event at Jawaharlal Nehru University (JNU) where slogans allegedly critical of India and sympathetic to Afzal Guru, had been raised.
The two incidents are not isolated legal actions—they are blatant examples of how governments manipulate national security laws to silence dissent. These cases expose the deep flaws in the so-called democratic legal systems of the U.S. and India, where constitutional guarantees of free speech crumble the moment political activism threatens the ruling establishment. The strategic abuse of criminal law, whether through immigration detention or sedition charges, demonstrates how both governments use legal systems as tools of authoritarian control rather than for protectors of civil liberties.
The Council on American-Islamic Relations and other civil rights groups condemned the detention as a clear violation of his First Amendment rights.
Who is Mahmoud Khalil?
Khalil is a Palestinian origin U.S. green card holder, married to an American citizen. He recently graduated as a master’s student from Columbia’s School of International and Public Affairs. Khalil was at the forefront of pro-Palestinian demonstrations at Columbia last year, which saw students demanding an end to Israel’s genocide in the Gaza Strip. He largely served as a spokesperson and negotiator between the protesting students and the Columbia administration.
On March 8, 2025, Khalil was detained by the U.S. Immigration and Customs Enforcement (‘ICE’) while on his way back home along with his pregnant wife. The Council on American-Islamic Relations and other civil rights groups condemned the detention as a clear violation of his First Amendment rights.
As of now, no criminal charges have been pressed against Khalil while he still is in detention. As of March 17, New York federal Judge Jesse Furman blocked any immediate effort to deport Khalil until his attorneys and the federal government appear in court. The federal officials have justified Khalil’s detention and, deportation under Section 237 (a) (4)(C)(i) of the Immigration and Nationality Act (‘INA’), which allows deportation of individuals whose presence or activities would have adverse foreign policy consequences for the U.S. — a provision so broadly defined and vague that it leaves space for too much discretion.
The Federal Authorities are citing concerns about possible extremist affiliations and linking Khalil’s activism with Hamas. The Trump Administration that Khalil’s pro-Palestine activism has allegedly undermined national security interests of the U.S.
Khalil’s arrest, seemingly for a ‘thought crime’, seemingly the first of its kind, has set the stage for suppressing dissenting voices by targeting foreign students and pro-Palestine demonstrators on college campuses by the Trump administration. It raises concerns over how the American legal system, despite its strong constitutional protections, is being manipulated by the Trump administration to destroy free thinking while overlooking due process and free speech along the way.
The 2016 JNU incident
A parallel can be drawn to India’s crackdown on dissent in 2016 when student leaders Khalid, Kumar, and Bhattacharya were arrested by the Delhi police after being charged under Section 124 of the Indian Penal Code.*
The pretext?
They allegedly participated in an event where “anti-India” slogans were raised. Their arrest sparked a nationwide debate about free speech, nationalism, the misuse of colonial-era sedition laws, and the role of state power in curbing dissenting voices.
It is being argued that Mahmoud Khalil’s activism at Columbia University did not meet the standards prescribed in Schenck and Brandenburg. Yet, he has been arrested under immigration law
Free Speech in the U.S. and India
Both the United States and India have constitutional safeguards for free speech. In the U.S., the First Amendment of the Constitution guarantees freedom of speech, including freedom to be part of political protests. In India, Article 19(1)(a) of the Constitution guarantees freedom of speech and expression. However, under Article 19(2), certain “reasonable restrictions” on grounds of national security and public order can be imposed.
In the U.S. , restrictions against Free Speech exist as well. Most notably, the Supreme Court of the United States in Schenk v. United States (1919) held that, “If speech is intended to result in a crime, and there is a clear and present danger that it actually will result in a crime, the First Amendment does not protect the speaker from government action.” In Brandenburg v. Ohio (1969), the Court also held that “A state may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.
Green card holders in the U.S., who are lawful permanent residents, are protected by theFirst Amendment as it does not distinguish between a citizen and non-citizen. It is being argued that Mahmoud Khalil’s activism at Columbia University did not meet the standards prescribed in Schenck and Brandenburg. Yet, he has been arrested under immigration law, which looks like a deliberate legal manoeuvre to bypass First Amendment protections. Instead of criminally charging him, which would require evidence and a fair trial, the U.S. government is using 237 (a) (4)(C)(i) of the INA to detain him indefinitely and deport him without presenting evidence of any criminal wrongdoing.
In India, Section 124A, which criminalised any speech or expression that could “bring hatred or contempt” against the government, is presently in abeyance following the Supreme Court’s directions in S.G. Vombatkere v. Union of India (2022).
However, before this suspension, the sedition law was frequently misused to suppress political dissent rather than to address actual threats to public order. Section 152 of the newly enacted Bharatiya Nyay Sanhita, 2023 (BNS) criminalises any act exciting secession, armed rebellion, and subversive activities. It also criminalises acts encouraging feelings of separatism or endangering the sovereignty, unity, and integrity of India. The Rajasthan High Court, in Tejender Pal Singh v. State of Rajasthan (2024), cautioned against using Section 152 as a tool to stifle legitimate dissent.
In 1962, the Supreme Court reconsidered the scope of sedition via Article 19(1)(a) of the Constitution of India, 1950 in Kedar Nath Singh v. State of Bihar (1962). The Supreme Court held that the crime of sedition was restricted to when there was a tendency of ‘actual violence or incitement to violence’ against the Government. However, despite these clear judicial restrictions, the State has repeatedly invoked sedition charges against individuals engaged in legitimate political speech and activism.
In the JNU sedition case (2016), the alleged slogans raised during the student event neither incited any violence nor did it lead to public disorder, or pose any real threat to national security. Yet, the students were booked and jailed. Therefore while the BNS does not formally use the term ‘sedition’, the Rajasthan High Court’s decision hints that the spectre of sedition still looms large in the BNS.
Khalid’s detention in the U.S. and the JNU arrests in India were not simply matters of law enforcement but politically motivated actions aimed at discouraging opposition to government policies.
Both U.S.A and India are democracies with very strong constitutions. However, the application of criminal law against student protesters in both countries demonstrates a strategic use of legal mechanisms to curb dissent by the ruling dispensation. Both Khalil and the three Indian student political activists were exercising their right to dissent in a campus space. For this, they were called terrorist sympathisers and presented as threats to national security.
Khalil, a Green Card holder, has not been charged under criminal statutes but has been detained under immigration laws, which allows the government to act unilaterally against non-citizens without the need for criminal prosecution. Khalil’s green card has not yet been revoked – which, by US law, cannot be done without a lot of due process. In India, these three students were arrested under flimsily charges of sedition and were put in jail.
Such incidents have a debilitating effect on the morale and spirit of the citizens who raise their voice against any injustice or violence. At such times, all citizens turn their face towards the judiciary- seeking its protection from any arbitrary action of the executive.
Khalid, though on bail in the JNU edition case, continues to be in jail in a separate case under the Unlawful Activities (Prevention) Act, 1987 (UAPA). The UAPA is a stringent anti-terror statute in India, which has also been repeatedly invoked against human rights activists and political dissenters. Despite differences in legal systems, both incidents share a striking similarity in how the State perceives political activism as a threat to national security. Khalid’s detention in the U.S. and the JNU arrests in India were not simply matters of law enforcement but politically motivated actions aimed at discouraging opposition to government policies.
The broader implications of these cases go beyond the individuals involved. They reflect a global pattern where governments use existing legal frameworks to suppress dissent under the pretext of national security. Whether through direct criminal prosecution or indirect immigration detention, both cases show how legal systems can be manipulated to serve political interests. While the U.S. and India differ in their legal structures, the Khalil and JNU cases illustrate how the boundary between legal enforcement and political suppression continues to blur in democracies worldwide.
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