Delhi riots case: Delay cannot be used as a ‘trump card’ to secure bail, SC reasons

A Bench headed by Justice Aravind Kumar held that neither prolonged pre-trial incarceration nor delay in trial were grounds for automatic grant of bail under the Unlawful Activities (Prevention) Act (UAPA) if the state has managed to gather material prima facie showing a deliberate, central and definitive role of accused persons to commit an act of terror.

Though flagging prolonged pre-trial detention as a “serious constitutional concern”, the court said personal liberty must bow to the Parliament’s wish, expressed through a special statute, to limit the court’s power to grant bail only upon the satisfaction of “defined statutory thresholds”. Courts cannot treat such restraints as “avoidable”.

The court upheld the restrictions imposed on bail under Section 43D(5) of the UAPA. The provision required an accused to prove his innocence to get bail, even before trial has ever happened. A court could assume his prima facie guilt merely by examining the chargesheet and refuse him bail.

“When the Parliament has described a distinct statutory threshold for grant of bail and where the prosecution has placed prima facie material of deliberate action affecting the security of the nation, the court cannot turn a Nelson’s eye on such material merely because incarceration is prolonged or liberty is invoked in the abstract… Equally, in cases in which continued incarceration is not necessary to serve the legitimate purpose, the court must not hesitate to restore the personal liberty with stringent conditions to safeguard the larger public interest,” Justice Kumar, who authored the judgment, observed.

Justice Kumar said a “principled approach”, not diluted by ideology or pre-judgment of the case at hand, must be adopted by courts to strike a delicate balance between the personal liberty of the accused and the collective security of the public in UAPA bail cases.

Article 21 (right to personal liberty and life) was central and seminal to the constitutional scheme, the court agreed. Its deprivation must conform to the ‘procedure established by law’.

The right to speedy trial was an important facet of the guarantee enshrined in Article 21. Pre-trial incarceration cannot take on a punitive character, the court acknowledged.

Nevertheless, Article 21 cannot operate in “isolation of the prevailing law”. The UAPA was after all a special statute meant to address acts which affected security, integrity, sovereignty of the state and stability of civic life. The restrictive conditions of bail under Section 43D(5) were a “legislative judgment” aimed to protect the unity of the nation.

Delay in trial cannot be a “trump card” flashed by accused persons to garner bail. At most, delay was a “trigger” for heightened judicial scrutiny of the bail plea. The outcome of the judicial examination by the court must be a “proportional and contextual balancing of legally relevant considerations.

These considerations included scrutinising the gravity of the offence, the strength of the prima facie case and whether continued incarceration was disproportionate enough to affect the constitutional guarantees under Article 21.

“No constitutional court can be unmindful of the gravity of restraining the personal liberty of a person before guilt is adjudicated, but the Constitution does not conceive liberty in isolation. Security of the country, integrity of the trial process and preservation of public order are equally legitimate public concerns. When bail is sought under a special statute, the court has to undertake a difficult and balancing exercise, conscious that neither liberty nor security admits absolutism,” the court explained.