SC denies bail to Umar Khalid, Sharjeel Imam: What courts have said earlier on UAPA and prolonged incarceration

The Supreme Court, in a 2021 decision in Union of India v K A Najeeb, granted bail in a UAPA case in which the accused had been in jail for over five years, and 276 witnesses remained to be examined.

The Supreme Court, in denying bail to Umar Khalid and Sharjeel Imam, accused of forging a “larger conspiracy” in the 2020 Northeast Delhi riots, observed that prolonged incarceration cannot be an “absolute entitlement” to seek bail in terror cases.

A bench headed by Justices Aravind Kumar and comprising Prasanna B Varale granted bail to five accused — Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohammad Salim Khan, and Shadab Ahmad — on Monday (January 5), while denying bail to Khalid and Imam.

All the accused had cited the delay in the trial and the length of custody as key grounds for bail. However, the SC granted bail to the five accused based on their “lesser” role in the case, rather than their prolonged incarceration.

The bench qualified that while pre-trial incarceration cannot be permitted to assume the character of punishment, it cannot turn a “Nelson’s eye” to issues of security of the state. “Delay does not operate as a trump card that automatically displaces statutory restraint; rather, delay serves as a trigger for heightened judicial scrutiny,” the SC said while reading out the bail orders.

The Unlawful Activities Prevention Act (UAPA) under Section 45(D) sets a high bar for bail. In the past, the SC has underlined prolonged incarceration as an exceptional ground for granting bail, overriding the stringent bail conditions under the UAPA.

Referring to the restrictive bail conditions in Section 43(D)(5) of the UAPA, the court held, “The rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence”.

In April 2024, the court relied on this ruling to grant bail to UAPA-accused and former Nagpur University professor Shoma Sen in the Bhima Koregaon case. Referring to the decision in K A Najeeb, the court stated “long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bail-restricting provision of Section 43D (5) of the 1967 Act”.

In Shoma Sen’s case, the court also held that “any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure, and such deprival must be proportionate in the facts of a given case”.

In July 2024, a bench comprising Justices J B Pardiwala and Ujjal Bhuyan also cited the right to speedy trial and granted bail to Sheikh Javed Iqbal, a Nepali citizen booked under the Unlawful Activities Prevention Act, bypassing its stringent bail provision.

Iqbal, at the time of his bail, had been incarcerated for over 9 years, with only two witnesses having their evidence recorded during that time.