Delhi Riots Case: Why The Supreme Court Denied Bail To Umar Khalid And Sharjeel Imam

The recent judgement of the Supreme Court in Gulfisha Fatima v State of N.C.T. Delhi (Delhi Riots Conspiracy case) marks a significant reaffirmation in the settled jurisprudence governing the grant of bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The bench comprising Justice Arvind Kumar and Justice N.V. Anjaria declined to grant bail to the accused in the Delhi Riots conspiracy case, holding that the material produced by prosecution establishes a prima facie attribution of a central and formative role played by the accused Umar Khalid and Sharjeel Imam in the alleged conspiracy that led to the horrific Delhi Riots in 2020.

The court found that the material on record suggests their involvement at the level of planning, mobilisation, and strategic direction attracts Section 43D(5) of UAPA. The Court categorically held that the prolonged incarceration and delay in trial, by itself, is not sufficient to dilute the statutory embargo provided by Section 43D(5) of the UAPA.

The Court opined, "Delay can warrant a more searching constitutional scrutiny. But it does not authorise the Court to dilute the statutory threshold by undertaking credibility findings. The balance must be maintained: constitutional concern is real, but statutory restraint is equally real. Where the prima facie threshold continues to be crossed, delay is met through expeditious trial directions and continued judicial monitoring, not by negating Section 43D(5)".

This ratio underscores the Court's settled position that the legislative intent and the object of the bail provision under UAPA cannot be overridden merely by invoking delay, unless the statutory threshold itself ceases to be met.

Whilst acknowledging that right to life and personal liberty under Article 21 of the Indian Constitution hold the foundational and central value in the Constitution, it should never operate in isolation. In the words of the Supreme Court in the instant case, "Article 21 protects individual liberty. It also, within the same guarantee of life, reflects the State's obligation to protect the life and security of the community.

In prosecutions alleging threats to public order and national security, the Court cannot be unmindful that both dimensions are engaged. The constitutional order is not served by an approach that treats liberty as the sole value and societal security as peripheral."

The judgement clarifies that the bail jurisprudence under the UAPA cannot be guided by the general principle of criminal law that "bail is rule and jail is an exception". Once the Court is satisfied that there exists a prima facie assessment, on the part of the Accused, the Statutory restraint on bail under Section 43D(5) of the UAPA Act operates in full force, subject to narrowly tailored constitutional scrutiny.

On this point, the Supreme Court categorically stated, "Where Parliament has prescribed a distinct statutory threshold for the grant of bail, and where the prosecution places prima facie material suggesting organised and deliberate activity affecting public order and security of the Nation, the Court cannot turn a Nelson's eye to such material merely because incarceration is prolonged or liberty is invoked in the abstract".

The Court has extensively analysed the individual role of all the accused. The judgement draws a clear distinction between the alleged ideological drivers and principal architects of the conspiracy, and other accused, who allegedly facilitated the riots on the local level.

Whilst doing so, the court has affirmed the salient feature of Section 43D(5), which mandates an inquiry that is accused-specific rather than case-centric as it does not permit a collective or undifferentiated approach to bail merely because the multiple accused are arraigned in the same prosecution.

This article examines the interrelated thread of the judgement, analysing the Court's reaffirmation that under UAPA, bail is not the norm, there are statutory obligation under section 43D(5) to it.

Secondly, it considers the Court's treatment of delay and prolonged incarceration of the accused persons within the contours of Article 21, and its refusal to allow constitutional concern to erode legislative thresholds. Thirdly it highlights the significant distinction between the roles of the mastermind and the other accused involved in the alleged conspiracy.

The UAPA represents legislative distinction from the general principles governing bail. It is a special statute enacted to address criminal conduct that transcends the ordinary penal law, and implicates the sovereignty, integrity, and security of the State. The statutory scheme of the Act reflects this understanding. It proceeds on a process-based conception of criminality rather than an event-based conception.

Chapters IV and VI of the Act do not confine criminal liability to the final execution of a terrorist act alone but rather extend culpability to preparatory conduct, facilitation, abetment, and conspiracy, recognising that the threat sought to be addressed by the statute often materialises long before any overt act of violence is committed.

Section 43D(5) constitutes a conscious departure from the general principles governing the grant of bail under the Code of Criminal Procedure. The Court observed that, "The cumulative effect of the statutory scheme and the jurisprudence of this Court is that Section 43D(5) operates as a gatekeeping provision. It requires the Court to undertake a focused, accused-specific, and legally disciplined inquiry, confined to determining whether the prosecution material, taken at its highest, satisfies the statutory threshold of prima facie truth".

The legislature has imposed certain restrictions on the powers of the Court to grant bail in respect to the offences under IV and VI of the Act. For the correct application of section 43D(5) the courts are required to take structured inquiry that:

(i) whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged;

(ii) whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and

(iii) whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full-fledged trial.

If these statutory requirements are met, the embargo on the grant of bail must operate with full force, preserving the legislative purpose of the Act and ensuring that the exceptional nature of the bail regime under Section 43D(5) does not get diluted by judicial overreach or distorted by mechanical application.

The Court has addressed the recurring argument in the bail proceedings, that the prolonged incarceration, coupled with delay in trial, renders the continued detention unconstitutional. Whilst the Court acknowledged that Article 21 of the Constitution of India and right to speedy trial are important facets of the Constitution, pre-trial incarceration cannot, by the mere passage of time, be permitted to assume the character of punishment.

The Court relied on the judgement of Union of India v. K.A. Najeeb, wherein it was recognised that the statutory restrictions cannot be applied to render the personal liberty of a person illusory when the trial is not likely to commence or conclude within a reasonable period. The constitutional courts retain the jurisdiction to grant bail in such circumstances. But the same judgement does not lay down any mechanical rule under which the mere passage of time becomes determinative in every case arising under a special statute.

The Court also draws a critical and often-overlooked distinction between institutional delay and delay attributable to the conduct of the accused themselves. The Court observed, based on the procedural history and order sheets, that the delay in trial was not attributed to prosecutorial inaction or judicial inaction; rather there were multiple instances where the accused themselves intentionally delayed the trial.

The Court observed, "The common counter affidavit and the Trial Court's orders record that, at various stages, the prosecution expressed readiness to proceed, including readiness to commence arguments on charge, whilst objections, requests for deferment, and issues relating to sequencing of arguments were raised on behalf of the accused.

At the stage of compliance under Section 207 CrPC itself, the Trial Court noted that despite repeated directions, certain accused declined to receive copies of the charge-sheet in the manner directed, insisted on alternate modes of supply, or filed successive applications, necessitating further procedural orders and contributing to delay at the pre-charge stage. These aspects emerge from the record and are not matters of conjecture".

This finding raises significant questions: whether the accused in the instant case intentionally delayed the trial to argue their case just on the grounds of delay rather than on the merits, or whether they were seeking a media trial rather than a judicial trial.

When the accused themselves repeatedly adopted the procedural strategies to delay the commencement of trial by declining to receive copies of the charge-sheet in the manner directed by the court, insisted on alternate modes of supply, or filed successive applications necessitating further procedural orders and contributing to delay at the pre-charge stage, such conduct is not rendered constitutionally neutral.

The Court's reasoning reflects that an accused cannot simultaneously contribute to the delay and then rely on same to claim constitutional remedies, and it is settled law of the land that every person should reach the court with clean hands.

The defining feature of the judgement is its categorical finding that bail adjudication under section 43D(5) of the UAPA must be role specific rather than case specific. Whilst denying the bail to accused Umar Khalid and Sharjeel Imam the court found that accusations against them were prima facie true and their role is distinctive in contrast to the role of the other accused who were granted bail.

The Court observed, "Court is satisfied that the prosecution material, taken at face value as required at this stage, discloses a prima facie attribution of a central and formative role by the appellants Umar Khalid and Sharjeel Imam in the alleged conspiracy. The material suggests involvement at the level of planning, mobilisation, and strategic direction, extending beyond episodic or localised acts. The statutory threshold under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, therefore stands attracted qua these appellants."

Whilst granting the bail to five other accused the court observed that the material on record, role of the other accused and the stage of trial does not reflect that they are required to be in continuous incarceration to conduct the fair trial. The Court opined, "having regard to the role attributed, the nature of the material relied upon, and the present stage of the proceedings, continued incarceration is not shown to be indispensable to the conduct of a fair trial, provided strict safeguards are imposed."

The judgement thus underscores the legislative embargo and discipline in granting bail in UAPA. It reinforces the principle that the constitution protects individual life and liberty, but it does not operate in vacuum divorced from competing constitutional interests of the national security and public order.