Bails of Umar Khalid and Sharjeel Imam denied by the Supreme Court

Introduction

The recent decision by the Supreme Court to deny bail to Umar Khalid and Sharjeel Imam in the Delhi riots “larger conspiracy” case highlights the complex balance between constitutional rights and national security laws in India. While the ruling is based on the strict bail provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA), it raises concerns about prolonged pre-trial detention, potential violations of Article 21, and the possibility of punishment before conviction.

This case prompts an important question for students of constitutional and criminal law: Can the concept of liberty retain its significance when individuals are held in custody for extended periods due to statutory regulations?

Bail under UAPA

In the usual course of Indian criminal jurisprudence, bail is considered the norm and imprisonment the exception, based on the presumption of innocence and the right to personal liberty guaranteed under Article 21 of the Constitution.

However, the UAPA deviates from this standard. Section 43D(5) of the UAPA imposes a nearly absolute restriction on bail, mandating courts to refuse release if the prosecution’s allegations seem prima facie true. Courts are explicitly discouraged from assessing the credibility, admissibility, or sufficiency of evidence at this stage.

The Supreme Court’s ruling in NIA v. Zahoor Ahmad Shah Watali solidified this stringent approach, essentially turning bail hearings under the UAPA into procedural formalities rather than substantive protections of constitutional rights.

Reasoning of the Hon’ble Court

The Court denied bail to Umar Khalid and Sharjeel Imam, stating that they were in a different category from their co-accused. The prosecution claimed that the two played key roles in planning, mobilisation, and articulating the alleged conspiracy.

Interestingly, the Court granted bail to five other co-accused, highlighting that its decision was based on evaluating individual roles rather than a blanket denial. This distinction shows that judicial discretion still exists under UAPA, albeit limited.

The main issue, however, is that under UAPA, mere allegations can lead to prolonged detention without the trial progressing significantly.

Captivity and the Constitution

One of the most concerning issues in the case is the extended detention of the accused without the trial reaching a conclusion. The defense strongly argued under Article 21, stating that keeping someone in pre-trial detention indefinitely goes against the right to life and personal liberty.

Previous court rulings like Hussainara Khatoon and Union of India v. K.A. Najeeb acknowledged that fundamental rights cannot be overshadowed by statutory limitations indefinitely, especially when trial delays are significant.

However, in this particular case, the Court ruled that delay alone cannot outweigh the statutory restrictions under UAPA. This represents a noticeable shift from a focus on individual liberties in constitutional interpretation to a more deferential approach to legislation, even in cases of prolonged and uncertain incarceration.

The implication is clear: while Article 21 is technically preserved, its substantive protection is delayed.

When individuals are held in custody as undertrials for a period of five years or longer without being convicted, their detention shifts from being preventive in nature to resembling punishment without a formal legal decision. This situation raises concerns that the UAPA may effectively operate as a form of disguised preventive detention, lacking the constitutional protections outlined in Articles 22(4)– 22(7), including regular reviews and limits on the duration of detention.

This imbalance in the system places the onus of delays on the accused individuals, rather than on the State’s responsibility to ensure timely trials.

Human Rights concern

India is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which requires that pre-trial detention should be rare, justified, and reasonable. The international human rights community is generally wary of prolonged pre-trial detention.

In contrast, the UAPA allows for prolonged detention with limited judicial review after the initial threshold is met. Although international law cannot be directly enforced, Indian courts have traditionally looked to global human rights standards for guidance—a practice that seems to be diminishing in cases related to national security.

Comparative Jurisprudence

United Kingdom: Even under the Terrorism Acts, extended pre-charge detention is closely monitored by the judiciary and has time limits.

European Court of Human Rights (ECtHR): The ECtHR has ruled that prolonged pre-trial detention violates the European Convention’s Article 5 unless there are compelling and ongoing reasons (Kalashnikov v. Russia).

United States: Preventive detention under national security laws is subject to strict constitutional scrutiny and regular review.

In contrast, the UAPA allows for indefinite detention without conviction, with limited review of necessity once the initial threshold is met.

Conclusion

The Supreme Court’s denial of bail to Umar Khalid and Sharjeel Imam, while legally justifiable under UAPA, raises significant constitutional and human rights issues. It highlights a system where procedural requirements take precedence over substantive justice, leading to delays rather than resolutions.

This case serves as a cautionary tale, showing thatconstitutional rights are often undermined through legal means rather than blatant violations. The indefinite suspension of liberty without conviction blurs the line between justice and procedure.

The ruling emphasizes the critical need to review the bail provisions of UAPA to prevent prolonged incarceration without due process from becoming a norm in India’s criminal justice system.