The denial of bail to Umar Khalid and Sharjeel Imam by the Supreme Court — five others were granted bail — in the Delhi riot case was based on considerations of their bail pleas under both general and special statutes such as the Unlawful Activities (Prevention) Act. Some of the reasons are quite singular. For instance, the court agreed that the material placed by the prosecution — taken at face value at this stage of the trial — underlined the central roles of Mr Khalid and Mr Imam in the alleged offences; this placed them on a “qualitatively different footing” than the others. The court also noted that even though the incarceration of the accused has been long and continuous, it did not violate constitutional guarantees or override the statutory bar on bail under the applicable law. Mr Khalid and Mr Imam have been in prison for over five years now; the defence has contended that the accused have been in custody for a prolonged period even though there has been no evidence to show that they had caused incitement during the riots. In prosecutions under UAPA, delay in trial, the court stated, does not operate as a “trump card” that automatically displaces statutory safeguards. Further bail prayers of Mr Khalid and Mr Imam, the court stated, would be considered “on completion of the examination of the protected witnesses relied upon by the prosecution or upon the expiry of the period of one year” from the date of this specific order. This should not, hopefully, be seen as yet another instance of process becoming the punishment in the public eye.
These developments have ramifications beyond this specific case. For they lay bare the fraught relationship between legal deterrents such as the UAPA and the principle of liberty in an increasingly polarised polity. The court has, while upholding the importance of the principle of liberty enshrined in Article 21, also stated that the constitutional framework does not concede liberty in isolation. Incidentally, Section 43D(5) of UAPA, departing from the usual application of bail under criminal law, prescribes a specific standard for the consideration of bail. The finer points of the terse ties between liberty and the UAPA would certainly be dwelt upon by the learned court. But what cannot be denied is that this compact is not static: prevailing interpretations of liberty and legal deterrence are a sign of the times.
