The Supreme Court on Monday criticised its own January verdict that denied bail to activists Umar Khalid and Sharjeel Imam in the Delhi riots conspiracy case, saying that “bail is the rule and jail is an exception” even in prosecutions under the Unlawful Activities Prevention Act, the Hindustan Times reported.
On January 5, the court denied bail to Khalid and Imam in the case. A bench of Justices Aravind Kumar and NV Anjaria had, however, granted bail to Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Shadab Ahmed and Muhammad Saleem Khan.
On Monday, another bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing a petition filed by a person Syed Iftikhar Andrabi against the Jammu and Kashmir High Court’s judgement in August that refused him bail in a narco-terror case under the anti-terror law, Live Law reported.
The Supreme Court granted Andrabi bail in the matter.
Referring to the January 5 verdict that denied bail to Khalid and Imam during the proceedings, the judges said that the Supreme Court had failed to correctly apply the binding principles laid down by a three-judge bench in the 2021 Union of India versus KA Najeeb case, the Hindustan Times reported.
This 2021 verdict recognised that prolonged incarceration and delay in trial can override the statutory restrictions on bail under the Unlawful Activities Prevention Act.
“Bail is not an empty statutory slogan,” the Hindustan Times quoted Bhuyan as saying on Monday. “It is a constitutional principle flowing from Article 21, and the presumption of innocence is the cornerstone of any civilised society governed by the rule of law.”
Article 21 of the Constitution guarantees the right to life and personal liberty.
“Even under UAPA, bail is the rule and jail an exception,” the bench said. “Bail can only be denied in a particular case depending on the facts of that particular case.”
Khalid, Imam and the other activists had been arrested between January 2020 and September 2020 in connection with the communal violence that broke out in North East Delhi in February 2020 between supporters of the contentious Citizenship Amendment Act and those opposing it. The violence had left 53 dead and hundreds injured. Most of those killed were Muslims.
The accused were charged under the Unlawful Activities Prevention Act, the Prevention of Damage to Public Property Act, the Arms Act and sections of the Indian Penal Code.
The police have claimed that the violence was part of a larger conspiracy to defame the Narendra Modi government and was planned by those who organised the protests against the amended Citizenship Act.
In its order rejecting bail for Khalid and Imam, the Supreme Court on January 5 said that in cases under the anti-terror law, delay in trials cannot act as a “trump card” overriding statutory safeguards. It had also said that while bail in cases under the Act is not given as a matter of routine, the “law does not mandate denial of bail as default and does not exclude the court’s jurisdiction to allow bail”.
The bench had added that the two activists could file fresh petitions after all protected witnesses are examined or after one year.
On Monday, the Supreme Court said that the order directing Khalid and Imam to revive their bail petitions only after all witnesses have been examined or after one year violated the right of liberty, the Hindustan Times reported.
The Supreme Court noted that it had taken a divergent view from the clear and distinctive trajectory it had earlier followed, The Indian Express reported.
The court held that the verdict in the 2021 Najeeb case “is the binding law and entitled to the protection of stare decisis”. Stare decisis is a legal doctrine that means “to stand by things decided”.
“It cannot be diluted, circumvented or disregarded by the trial court, the High Court, or even by benches of lower strength of this court,” the newspaper quoted the bench as having said.
The bench added that “judicial discipline mandates that such a binding precedent must either be followed or, in case of doubt, be referred to a larger bench”, Live Law reported.
The Supreme Court said that the presumption of innocence is the cornerstone of a civilised society governed by the rule of law.
While statutes may calibrate the manner in which the principle is applied, particularly in cases involving national security, those cannot invert the constitutional relationship between liberty and detention, it added.
Andrabi’s case
The Supreme Court made the remarks while granting bail to Andrabi, who had been in custody since 2020 in a narco-terror case registered by the National Investigation Agency in Jammu and Kashmir, the Hindustan Times reported.
The High Court had denied him bail in August citing the seriousness of the allegations and alleged links with cross-border terror operatives.
However, the Supreme Court noted that no contraband had been directly recovered from Andrabi and that he had already undergone nearly five years of incarceration. It directed that Andrabi be released on bail, subject to conditions as the National Investigation Agency court may deem fit.
Edited by Nachiket Deuskar.
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