'Qualitatively different footing': What the Supreme Court said in Umar Khalid and Sharjeel Imam’s Delhi riots bail case

Umar Khalid has been in custody since September 13, 2020.

• SC denied bail to Sharjeel Imam and Umar Khalid in 2020 Delhi riots case
• Five other accused granted bail with strict conditions by the Supreme Court
• Trial court directed to proceed swiftly and avoid unnecessary delays

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The Supreme Court on Tuesday denied bail to student activists Sharjeel Imam and Umar Khalid in a case registered under the Unlawful Activities (Prevention) Act (UAPA) linked to the alleged larger conspiracy behind the 2020 Delhi riots.

A Bench led by Justice Aravind Kumar pronounced the judgment while hearing appeals against a Delhi High Court order that had earlier refused bail. The top court, however, granted bail to five other accused in the case -- Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd Saleem Khan, and Shadab Ahmed.

Article 21 and pre-trial incarceration

The Bench noted that the appeals were argued primarily on the issue of prolonged incarceration and the right to personal liberty under Article 21 of the Constitution.

“Article 21 occupies a central space in the constitutional scheme,” the court said, adding that “pre-trial incarceration cannot be assumed to have the character of punishment.”

At the same time, the court clarified that deprivation of liberty would not be arbitrary when governed by a statutory framework. Referring to the UAPA, the Bench observed that it “represents a legislative judgment as to the conditions on which bail may be granted at the pre-trial stage.”

Scope of judicial scrutiny under UAPA

Interpreting Section 43D(5) of the UAPA, the court held that while the provision departs from general bail principles, “it does not exclude judicial scrutiny or mandate denial of bail in default.”

The Bench noted that “delay serves as a trigger for heightened judicial scrutiny,” but cautioned that offences under the UAPA are “rarely confined to isolated acts” and often involve wider conspiracies.

It further clarified that “bail is not a forum for evaluating defences,” and that “judicial restraint is not an abdication of duty.” Courts are instead required to undertake a “structured enquiry” to determine whether the prosecution material discloses a prima facie offence and whether the role attributed to the accused has a reasonable nexus with the alleged crime.

Interpretation of ‘terrorist act’

Reading the contours of Section 15 of the UAPA, which defines a “terrorist act”, the court observed that the provision is not limited to cases involving death or physical destruction. “Apart from death or destruction, the provision encompasses acts that disrupt essential services and pose a threat to the economy,” the Bench said.

'Different footing' of the accused

The Supreme Court emphasised that each appeal had to be examined independently, noting that “all the appellants do not stand on equal footing as regards culpability.”

The Bench observed that “the hierarchy of participation requires the court to assess each application individually,” adding that Article 21 requires the State to justify prolonged pre-trial custody.

On Umar Khalid and Sharjeel Imam, the court held that they “stand on a qualitatively different footing as compared to other accused.” It concluded that the prosecution material disclosed a prima facie case against them and that “the statutory threshold stands attracted qua these appellants.”

“This stage of the proceedings does not justify their enlargement on bail,” the Bench said.

However, the court granted liberty to Khalid and Imam to seek bail upon completion of the examination of protected witnesses or after one year from the date of the order, whichever is earlier.

Bail for five accused

Allowing the appeals of Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd Saleem Khan, and Shadab Ahmed, the court granted them bail subject to strict conditions.

The Bench clarified that “the grant of bail to these accused does not show a dilution of the allegations against them.” It added that in the event of any violation of bail conditions, “the trial court shall be at liberty to cancel the bail after hearing the accused.”

The court also cautioned that “to disregard the distinction between the central roles played by some accused and the facilitatory role played by other accused would itself result in arbitrariness.”

Trial to proceed without delay

The Supreme Court directed the trial court to ensure that the examination of protected witnesses is carried forward “without any delay” and that the trial “is not unnecessarily prolonged.”