A Puzzle From SC

In denying bail to two Delhi riots’ undertrials, apex court walks back on its own stand

The sense of disquiet following Supreme Court’s refusal of bail to Umar Khalid and Sharjeel Imam, accused under UAPA, is born out of the sense that apex court has walked back on its consistent precedents and repeated calls for adhering to the principle of ‘bail not jail’. SC, on earlier occasions, had held this to be true even for UAPA and PMLA, despite negative bail provisions in these stringent laws. Equally worryingly, SC’s departure from its own stand will likely confuse trial courts.  

Ironically, on Tuesday, SC in another case said, “It is well settled if prosecuting agency, including the court” can’t “provide or protect fundamental right of an accused to have a speedy trial then, plea for bail can’t be denied on the ground that the crime committed is serious.” In appeal after appeal – over refusal of bail – SC had implored judges not to make the process a punishment. In Antil vs CBI (July 2022), SC included directives to expand scope of bail. In bailing Sisodia in Delhi’s liquor-policy PMLA case, SC said “prolonged incarceration” and “delay in trial” should be read into bail provisions. In a UAPA case of a retired Bihar constable, SC said denying bail would violate rights under Article 21.

All of this was set aside in Khalid and Imam’s cases. Two points especially are puzzling. First, SC said the two had not been imprisoned beyond “constitutional impermissibility”. What is a trial court to make of this? How subjective is “long” pre-trial jail? Is five years, as is the case for Khalid and Imam, not “long” enough? The second puzzle is why SC dealt with the definition of terror while considering bail for the two of the seven who’d applied for relief. It thereby created a hierarchy of offenders at the pre-trial stage itself. This is inconsistent with SC saying on many occasions that “inference” is not “evidence”. The court had also repeatedly held that probe agencies cannot argue against bail basis “evidence” that would only come into play once trial begins.

True, Khalid and Imam can apply for bail after a year. But a year is an especially long time when, going by SC’s numerous earlier decisions, bail should arguably have been granted on Monday.

END OF ARTICLE