The Supreme Court on Monday refused to grant bail to activists Umar Khalid and Sharjeel Imam in the Delhi riots case, holding that a prima facie case under the Unlawful Activities (Prevention) Act (UAPA) was made out against them.
A bench comprising Justice Aravind Kumar and Justice N V Anjaria held that the statutory bar on bail under Section 43D(5) of the UAPA was attracted and, therefore, their continued incarceration could not be interfered with at this stage.
While examining the bail pleas, the court said at the stage of bail under a special statute like the UAPA, the inquiry is limited. The court is not required to undertake a detailed evaluation of evidence but only to assess whether the prosecution material, on its face, discloses the commission of offences under the Act, and whether the role attributed to the accused has a real nexus with the alleged conspiracy.
The bench reiterated that Section 43D(5) represents a conscious legislative departure from ordinary bail principles.
Once the prosecution material prima facie discloses the commission of a terrorist offence, the statutory restriction on bail must prevail, even in cases involving prolonged incarceration.
The Court clarified that although constitutional courts retain the power of judicial scrutiny, such scrutiny must operate within the limits prescribed by the UAPA.
Explaining the scope of offences under the Act, the Supreme Court observed that the definition of a “terrorist act” under Section 15 of the UAPA is not confined to the use of bombs or conventional weapons. Parliament has extended the definition to include acts committed by “any other means” with the intent to threaten the security of the State or to strike terror, including acts that disrupt civic life or paralyse normal economic activity.
At the bail stage, the Court said the task is confined to seeing whether the allegations disclose a prima facie nexus with these statutory ingredients.
Applying these principles, the bench held that Umar Khalid and Sharjeel Imam stood on a “separate footing” from other accused in the case.
It found that the material placed on record at this stage was sufficient to attract the statutory embargo under Section 43D(5) of the UAPA, making them ineligible for bail.
The Court also emphasised that parity cannot be mechanically applied in cases arising under special statutes. Bail adjudication requires an individualised assessment of the role attributed to each accused, the Bench said, adding that treating all accused alike without examining specific allegations would undermine the statutory framework.
While acknowledging that the right to personal liberty under Article 21 of the Constitution is of paramount importance and that prolonged pre-trial incarceration is a serious concern, the Court held that where prosecution material prima facie discloses an offence under the UAPA, courts cannot ignore the legislative mandate.
Accordingly, the Supreme Court rejected the bail pleas of Umar Khalid and Sharjeel Imam.
The verdict had been reserved on December 10. During the hearing, the prosecution, represented by Additional Solicitor General S.V. Raju and Solicitor General Tushar Mehta, had opposed the bail pleas, contending that the violence in Northeast Delhi in 2020 was not a spontaneous protest against the Citizenship Amendment Act (CAA) but part of a well-planned conspiracy to incite unrest.
Senior Advocate Kapil Sibal, appearing for Umar Khalid, had argued that at the current pace, Khalid could remain in prison for several years without trial.
Senior Advocate Dr. Abhishek Manu Singhvi, appearing for co-accused Gulfisha Fatima, had questioned the Delhi Police’s claim of a coordinated “regime change” conspiracy, stating that such allegations did not find mention in the charge sheet.
All five accused booked under the UAPA have filed Special Leave Petitions challenging the Delhi High Court’s September 2 order denying them bail.
The High Court had observed that “violence in the name of protest is not free speech” while dismissing the bail pleas of Umar Khalid, Sharjeel Imam, and others.
The case relates to the violence that erupted in Northeast Delhi in 2020 during protests against the CAA, which resulted in large-scale stone-pelting, arson, and clashes, leaving 53 people dead and several others injured.
