Why SC denied bail to Umar Khalid, Sharjeel Imam but awarded it to five other anti-CAA activists

The Supreme Court on Monday refused to grant bail to anti-Citizenship Amendment Act activists Umar Khalid and Sharjeel Imam in the conspiracy case linked to the 2020 Delhi riots even as it allowed it for five others, Gulfisha Fatima, Meera Haider, Shifa Ur Rehman, Mohammd Saleem Khan and Shadab Ahmed.

They have been in prison for more than five years now.

The court made an exception for Khalid and Imam, arguing that both were “masterminds” and the material on record made out a “prima facie case” against them under the Unlawful Activities (Prevention) Act.

It noted that it had refrained from adopting a “collective approach” and had instead “independently examined the specific role” attributed to each accused person. “Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances,” the court explained.

Khalid and others had approached the Supreme Court to seek relief after the Delhi High Court rejected their bail pleas in September. After hearing detailed submissions from both the prosecution and the accused, the Supreme Court had reserved its verdict in December.

The seven had been arrested at various points between January and September 2020 in connection with communal violence that took place in North East Delhi in 2020. The clashes took place between supporters of the Citizenship Amendment Act, which for the first time introduced a religious clause in Indian citizenship, and those opposing it.

The violence claimed 54 lives and left hundreds injured, with most of the victims being Muslims.

On Monday, the court decided to tackle the argument made by Khalid and the others that keeping them in custody for such a long period in the absence of an early conclusion of the trial violates their right to personal liberty under Article 21 of the Constitution.

Their lawyers clarified that they were not asking the court to examine the merit of the prosecution's case, but only to consider the delay in the trial.

However, the Supreme Court held that “delay cannot be examined in isolation” and that alone “does not automatically justify bail”. The court observed that while the “right to a speedy trial is an important part of Article 21”, this right must be balanced with national security. Under the Unlawful Activities (Prevention) Act, the right to bail is severely restricted, and courts must first see whether there is a “prima facie case under Section 43D(5) of the Act” made out against the accused, the Court added.

Under this section, a person charged with serious offences cannot be granted bail under normal circumstances. Before considering any bail application, the court must hear the public prosecutor.

Further, if the court, after a preliminary look at the case diary or chargesheet, finds that the allegations appear to be true, it is legally barred from granting bail, regardless of the merits of the case to be examined at trial.

The court referred to its earlier judgments, including Union of India v KA Najeeb, 2021, which held that “courts can grant bail in exceptional cases” where prolonged detention becomes unjust.

However, the court clarified that the Najeeb judgment does not lay down an automatic rule that bail must be granted simply because an accused has spent a long time in jail. “The Court must consider, in totality, whether continued detention has become constitutionally unjustifiable,” it held

The Supreme Court held that in the present case “the delay could not be blamed entirely on the prosecution or the courts”. The argument about the delay in the trial had already been examined by the Delhi High Court in the case of a co-accused from the same FIR, it added. The Supreme Court noted that the High Court had clearly held that bail under Section 43D(5) of the Unlawful Activities (Prevention) Act cannot be granted merely on the ground of delay, particularly when the delay is attributable, at least in part, to the conduct of the defence.

While the Supreme Court acknowledged that the accused persons in the High Court were not the same as the present case, it said the High Court's findings still matter because they come from the “same case, the same trial records, and the same procedural background”.

The court said: “They negate the overarching portrayal that the appellants have remained in custody solely on account of prosecutorial inertia or a dormant trial.”

The court held that prolonged custody is a serious concern, but in this case, “it has not reached a stage where detention has become unconstitutional”. Instead of granting bail, the appropriate response is to ensure that the trial proceeds faster, it held.

The court observed that while Khalid and others can raise the issue again if the trial continues to stagnate, at this stage, a delay alone does not justify bail.

The Supreme Court reiterated that deciding bail under the Unlawful Activities (Prevention) Act is very different from deciding bail in ordinary criminal cases. “Section 43D(5) does not exclude judicial scrutiny, nor does it mandate denial of bail by default,” the court held. “The restriction operates only upon the court being satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true.”

The Supreme Court observed that, when the material on record is considered as a whole, it “establishes that Umar Khalid and Sharjeel Imam stand on a qualitatively different footing from the remaining accused”, both in the prosecution's version of events and in the evidence relied upon.

Describing Khalid and Imam as “masterminds”, the Supreme Court noted that the prosecution's evidence includes “direct, corroborating, and contemporaneous material, such as recoveries, digital communication records and statements” suggesting their “managerial roles”.

On the other hand, the court noted that the participation in the events of the other accused persons who were granted bail is primarily based on their “associative or peripheral actions”.

“The alleged masterminds are stated to have exercised command authority and to possess the ability to mobilise or influence individuals within and outside their immediate circle,” the judgment stated.

The court observed that the continued detention of those alleged to be the “architects of the conspiracy may be required to safeguard broader security interests and deter future acts”, while the justification for “holding minor participants is comparatively reduced once the investigative purpose is exhausted”.

The Supreme Court held that Umar Khalid and Sharjeel Imam are “prima facie attributed a central role and alleged to be ideological drivers of the alleged conspiracy”.

“The charge-sheets attribute to them the role of formulating the protest strategy, including the alleged transition from sit-in demonstrations to chakka jams, selection of locations, and articulation of the broader political objective sought to be advanced,” the court added.

However, while granting bail to Gulfisha and others, the court observed that, “they are consistently described as local-level facilitators”.

“Their alleged involvement is site-specific and operational, confined to particular localities such as Seelampur, Jafrabad, Chand Bagh, Jamia, and Shaheen Bagh,” the court added.

The court further noted that the allegations against Gulfisha and the other four accused primarily concern “on-ground mobilisation, logistical coordination, funding at the local level, stockpiling of materials, and execution of directions” allegedly received from Khalid and Imam, as opposed to the “formulation of the overarching strategy”.

Rejecting argument that Khalid's absence from the riot sites or the lack of weapons or recoveries should affect bail. It noted that under the Unlawful Activities (Prevention) Act, organisers of a conspiracy can be held responsible for “planning and coordination”, even if they did not personally execute violent acts.

Taking the prosecution material cumulatively, the court found that it “disclosed reasonable grounds for believing the accusations against Khalid were prima facie true” hence bail be denied.

Imam contended that the case against him rests solely on “speeches, pamphlets, and protest-related activities”. The court, however, did not accept this “characterisation as complete”.

The court accordingly found that the prosecution material taken at face value, “discloses reasonable grounds for believing that the accusations against the appellant are prima facie true”.

“The material relied upon is not confined to abstract ideology,” the court held. “It comprises digital coordination, attribution of planning and mobilisation, presence supported by location records, a protected witness statement describing differentiated chakka jam strategy, and speech material exhorting disruption and choking of essential services.”

However, the court also provided “a defined window for reconsideration of bail”. It held that Khalid and Imam would be free to renew their bail pleas “after the examination of the protected witnesses relied upon by the prosecution, or after one year from the date of the order”, whichever is earlier.

The court observed that the release of the five appellants, Gulfisha Fatima, Meera Haider, Shifa-ur-Rehman, Mohammd Saleem Khan and Shadab Ahmed, on bail, were subject to stringent conditions, imposed not as mere formalities but as safeguards necessary to “protect national security, public order, and the integrity of the trial process”.

The court barred them from attending any gathering or circulating any material during the pendency of the trial. It further directed them to “surrender their passports”, if any, before the trial court. In cases where no passport exists, an affidavit to that effect must be filed. The immigration authorities would be informed to ensure that they are not permitted to leave the country without judicial permission.

The court directed each of them to post a personal bond of Rs two lakhs with two local sureties of the same amount. They were further “restrained from leaving Delhi without prior permission of the trial court”, and any travel request must clearly disclose reasons and would be considered strictly on its merits.

The court mandated that the accused person furnish their current residential addresses, contact numbers and email addresses to the investigating officer and the trial court. It restrained them from changing these particulars “without giving at least seven days' prior written notice”.

Each appellant iss required to personally appear twice a week before the Delhi Police.

They were expressly restrained from “contacting, influencing, intimidating, or attempting to contact” any witness, and prohibited from “making or disseminating any statement, article, or post” relating to the case.

Finally, the appellants were directed to “fully cooperate with the trial”, “maintain peace and good behaviour”, and warned that any offence could lead to cancellation of bail.

Source: Scroll
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