Supreme Court’s bail order in Delhi riots case raises deep concerns

The Supreme Court’s decision to deny bail to Umar Khalid and Sharjeel Imam in the Delhi riots case, more than five years after their arrest, is an alarming retreat from the Court’s own dictum that bail is the rule and jail is the exception. The grant of bail under the stringent Unlawful Activities (Prevention) Act is already fraught with challenges. The law sets a high bar for the accused. Disturbingly, the 142-page bail order further raises this bar. The fact that five co-accused have been granted bail is a welcome and overdue affirmation that years of pre-trial incarceration cannot become the norm, even under a harsh statute. Yet the very reasoning that frees them is used to construct a questionable distinction, in which Khalid and Imam are placed on a “higher footing in the hierarchy of participation” on a “qualitatively different basis”.

A key exception to bail under UAPA is when the accused has undergone a prolonged pre-trial incarceration. The SC has previously underlined that even in terror cases, the rigours of bail must “melt down” where there is no reasonable likelihood of a timely trial. Now, in a case that is emblematic of the justice system’s delays, the Court concedes that Khalid and Imam’s pre-trial incarceration is “substantial,” but it says it is yet to cross the “threshold of constitutional impermissibility.” The Court says that the accused are at liberty to move for bail again “upon the expiry of a period of one year from the date of this order” — as if they have fallen short by a year to cross the constitutional threshold. The SC also lends its weight to the claim that Khalid and Imam played a “central and formative” role while others had “merely conspiratorial association”. It is troubling that the Court does this not on the strength of the evidence it examined but on the flimsy narrative of the prosecution. At several points, the Court reminded itself that a bail application is not the stage for a “mini-trial.” However, in categorising the accused and examining the depth of the roles, the Court effectively does the job of a trial court and gives the prosecution the benefit of the doubt.

At the heart of the Delhi riots case is the question of what constitutes a terrorist act. Section 15 of the UAPA envisages terrorist acts through the use of bombs, explosives, firearms or “any other means”. The prosecution dangerously lumps creation of WhatsApp groups, calls for non-violent protest, road blockades as “any other means”. The SC quietly accepts this expansion. In a democracy, this wide and loose framing — that threatens to criminalise dissent and peaceful protest — is disquieting. It must be reconsidered.