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The Supreme Court has yet again denied bail to student activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case. However, other accused in the case, including Gulfisha Fatima, Meera Haider, Shifa Ur Rehman, Mohammed Saleem Khan, and Shadab Ahmed have been granted bail.
A bench of Justices Aravind Kumar and NV Anjaria heard the bail pleas on Monday, January 5. The bench observed that it has individually analysed the role of each of the accused in the case and avoided a collective approach.
The bail applicants are facing charges under the Unlawful Activities (Prevention) Act (UAPA) in a case linked to the alleged larger conspiracy behind the communal violence that rocked north-east Delhi in February 2020. All the accused were arrested during widespread protests against the Citizenship Amendment Act (CAA).
What the court said
Explaining the statutory scheme of the Unlawful Activities (Prevention) Act, the court noted that the law extends criminal liability even to preparatory acts before violence occurs. While Section 43D(5) imposes strict conditions on grant of bail, it does not completely bar judicial review.
Interpreting Section 15 of the UAPA, the court observed that a terrorist act must involve intent to threaten the security of the State or to strike terror, and is not limited to the use of explosives. The definition extends to acts that disrupt civic life or paralyse economic activity.
The court added that all accused cannot be treated alike. Bail adjudication requires an individual assessment of the role attributed to each accused, as identical treatment may result in unjust pre-trial detention. Differentiation among accused, the court said, is a constitutional requirement.
Applying these principles, the court held that Umar Khalid and Sharjeel Imam stood on a different footing due to the central and formative role attributed to them. Their bail pleas were rejected, with liberty to renew their applications after the examination of protected witnesses or upon expiry of one year.
Ironically, the court held that prolonged incarceration impacts the right to personal liberty under Article 21, which includes the right to a speedy trial. It said that delay in trial triggers closer judicial scrutiny, requiring courts to examine the seriousness of the offence, the role attributed to the accused, the strength of the case prima facie, and the length of detention.
The court, however, granted bail to Gulfisha, Meeran Haider, Saleem Khan, Shifa, Shadad, and others, considering the role attributed to them and the period of continued incarceration. Bail was granted subject to 12 conditions, with a warning that misuse would result in cancellation.
The court directed the trial court to proceed expeditiously, particularly with the examination of protected witnesses, and clarified that its observations should not be treated as findings on the merits of the case.
Delhi Police strongly opposed the bail applications, claiming that the riots were not spontaneous but a result of a “premeditated and coordinated conspiracy”.
The Delhi High Court had earlier, on September 2, denied bail to Umar, Sharjeel, and seven other accused, including Meeran Haider, Gulfisha Fatima, Athar Khan, Shifa-ur-Rehman, Mohammad Saleem Khan, Shadab Ahmed, and Khalid Saifi. Another accused, Tasleem Ahmed, was denied bail by a separate bench.
The 2020 case
The 2020 violence had erupted amid nationwide protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC). The unrest resulted in the deaths of 53 people and left over 700 injured.
The controversial CAA, which was passed by the Bharatiya Janata Party (BJP)-led Union government in 2019, sought to fast-track citizenship for illegal migrants who came to India from Afghanistan, Bangladesh, or Pakistan and belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities. The Act notably excluded Muslims, triggering countrywide protests alleging that the legislation went against the tenets of the Indian Constitution.
