Bail, Not Jail: Supreme Court Says UAPA Cases Are No Exception, Flags Umar Khalid Judgment

New Delhi: The Supreme Court on Monday observed that bail should be the rule and jail the exception even in Unlawful Activities (Prevention) Act (UAPA) cases, and expressed reservations about an earlier judgment delivered by another bench denying bail to activist Umar Khalid in the 2020 Delhi riots case.

A bench comprising justices BV Nagarathna and Ujjal Bhuyan made the observation while granting bail to a J&K resident who has been in custody since June 2020 in connection with a narco‑terrorism case registered by the National Investigation Agency (NIA).

The bench said that bail should be the rule even in UAPA cases and stressed that the right to a speedy trial cannot be defeated merely because an accused has been booked under this stringent anti-terror law.

The bench expressed reservations over the decision in Gulfisha Fatima v. State, which dealt with bail applications arising from the Delhi riots. While several accused were granted bail, the apex court declined to grant bail to activists Umar Khalid and Sharjeel Imam.

Justice Bhuyan, pronouncing the verdict on behalf of the bench, said the bench had serious reservations about the judgment in Gulfisha Fatima.

He said that the judgment in this case suggests Najeeb (a case law stating an accused cannot be jailed indefinitely) is only a narrow and exceptional departure from Section 43D(5), justified only in extreme factual situations. The bench said that the hollowing out of the import of the observations in Najeeb is what concerns it.

Justice Bhuyan observed that the broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release.

The bench observed that the statutory embargo of Section 43D(5) UAPA must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution.

The bench made it clear that it has no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception, and in an appropriate case, bail can be denied having regard to the facts of that particular case.

The bench delivered the judgment on bail plea by one Syed Iftikhar Andrabi, a resident of Handwara in Kupwara district of Jammu and Kashmir, who was arrested by the NIA on June 11, 2020.

"We have serious reservations on various aspects of the judgment in Gulfisha Fatima, including foreclosing the right of the two appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5) justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with”, said the bench, in its 102-page judgment.

The bench said no reading of Najeeb suggests that the mere passage of time, divorced from all surrounding circumstances, mechanically entitles an accused to release, and the real concern addressed in Najeeb lay elsewhere.

"This Court was concerned with the manner in which Section 43-D(5) was, in practice, being deployed as an almost conclusive basis for denial of bail notwithstanding extraordinary delay in trial and prolonged incarceration," it added.

“It is precisely for that reason that this Court observed that the ‘rigours’ of Section 43-D(5) would ‘melt down’ where there is no likelihood of the trial being completed within a reasonable time and where the period of incarceration undergone has already exceeded a substantial part of the prescribed sentence”, it added.

The bench said this court in Najeeb cautioned that such an approach was necessary to prevent provisions like Section 43-D(5) from being used as ‘the sole metric for denial of bail or for wholesale breach of the constitutional right to speedy trial.’

"The emphasis in Najeeb was constitutional in nature: it was directed towards preventing Section 43-D(5) from overpowering Article 21 considerations in cases of gross delay and prolonged incarceration. The constitutional force of Najeeb lies in its restoration of the hierarchy between a statute, namely, the UAP Act, and the Constitution. Section 43-D(5) remains subordinate to Article 21 at all times, and a constitutional court need not hold back bail to the accused in the garb of Section 43-D(5)," said Justice Bhuyan

The bench said the often-invoked phrase "bail is the rule and jail is the exception" is not merely an empty statutory slogan.

The bench said it is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence, which is the cornerstone of any civilised society governed by the rule of law.

"We have no manner of doubt in stating that even under the UAP Act, ‘bail is the rule and jail is the exception’; of course, in an appropriate case, bail can be denied having regard to the facts of that particular case," it said.

The top court also flagged low conviction rates under the Unlawful Activities (Prevention) Act and said over 90 per cent of such trials culminate in acquittals.

The bench referred to data compiled by the National Crime Records Bureau (NCRB) and said that the country-wide percentage of convictions under the UAPA for the five years from 2019-23 hovers between 2 per cent and 6 per cent.

The bench said it is evident that the country-wide percentage of conviction under the UAPA for the five years comprising the period 2019-23 hovers between 2% to 6%. In other words, there is 94% to 98% possibility of acquittal in such cases in the country.

“When it comes to the Union Territory of Jammu and Kashmir, the percentage of conviction is abysmal, to say the least. For the aforesaid period, the annual rate of conviction is always less than 1%. It means that at the end of the trial, there is 99% possibility of acquittal in such cases”, it added.

The bench said with these kind of statistics staring at our face, the question is, should we continue the detention of the appellant or defer the consideration to a later stage, simply because the charges are serious?

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