On Tuesday, the Delhi Police made a request to the Supreme Court: it stated that a larger bench must address the question whether prolonged incarceration and a delay in trial can override the statutory restrictions on bail even under the Unlawful Activities (Prevention) Act, 1967. The reason for the request was, the Delhi Police made it clear, the confusion that had arisen in light of conflicting judgments. The reference point was obvious. In an unusual but important step, a two-member bench, while granting bail in a separate case involving narco-terrorism, recently expressed “serious reservations” about the reasons cited by another two-member bench of the highest court that had, in contravention of the principles established by a larger bench in the K.A. Najeeb case, denied bail to Umar Khalid and Sharjeel Imam in January. The two have been under prolonged detention under UAPA. Incidentally, the Najeeb case, a landmark verdict by the enlightened court, had upheld that bail is the rule, not the exception, even in case of stringent legislations. Mr Khalid and Mr Imam have been held since 2020 without trial. Their right to seek bail had been foreclosed for a year, another facet of the January judgment that was criticised by this other bench.
That subordinate courts are conservative when it comes to bail is an established fact. But the inconsistency of the Supreme Court on the same matter is troubling. This is especially so because the presumption of innocence of the accused is — should be — an integral feature of modern jurisprudence. It applies, as the judgment in the Najeeb case underlined, even in the case of legislations armed with limited bail conditions. It is strange for two benches of the top court to speak in two voices on the matter of individual liberty. Whether proceedings in the trial involving Mr Khalid and Mr Imam take a different — heartening — turn remains to be seen. But there is a case for the Supreme Court to act on the wicked but common practice of denying liberty by incarcerating dissenters — activists, journalists, scholars and others — without trial for long periods of time. There has been a lot of encouraging talk about decolonising Indian law. Such reformatory instincts must explore ways of keeping rigorous legislations receptive to bail stipulations.