THE SUPREME COURT delivered its much-anticipated judgment in Gulfisha Fatima v. State (Govt. of NCT of Delhi) this week. The Court refused to grant bail to Umar Khalid and Sharjeel Imam, while granting bail to five other co-detenus, namely Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan, and Shadab Ahmad. There are several problems with the judgment. This article, however, highlights only a few that are particularly crucial.
The alleged conspiracy and the prosecution’s case
Briefly, the facts of the case are that the detenus are alleged to have engaged in a conspiracy that resulted in the communal riots in Delhi between February 23-25, 2020. The prosecution alleges that they delivered provocative speeches and mobilised people to organise “chakka jams” in various areas, leading to road blockages and disruption of public life, ultimately culminating in communal riots in which lives were lost and property was destroyed. Several FIRs were registered, and chargesheets as well as supplementary chargesheets have since been filed against them.
All the accused were arrested in 2020 and have remained incarcerated for over five years. They have been charged, among other offences, under various provisions of the Indian Penal Code, 1860, the Prevention of Damage to Public Property Act, 1984, and the Arms Act, 1959. Most significantly, they have also been charged under the Unlawful Activities (Prevention) Act, 1967, including Sections 13 (punishment for unlawful activities), 16 (punishment for a terrorist act), 17 (punishment for raising funds for a terrorist act), and 18 (punishment for conspiracy). Sections 16 to 18 fall under Chapter IV of the UAPA. The punishment prescribed for these offences ranges from five years’ imprisonment to imprisonment for life.
Bail on the basis of long period of incarceration
Under the UAPA, restrictive conditions are imposed for the grant of bail under Section 43D(5), which contains the following proviso:
“Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is true.”
This provision was interpreted in Union of India v. K.A. Najeeb (2021), wherein a three-judge Bench of the Supreme Court, speaking through the present Chief Justice, Justice Surya Kant, held as follows:
“It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on the ground of violation of Part III of the Constitution. Indeed, both the restrictions under the statute as well as the powers exercisable under constitutional jurisdiction can well be harmonised. Whereas at the commencement of proceedings the courts are expected to appreciate the legislative policy against grant of bail, the rigours of such provisions will melt down where there is no likelihood of the trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would guard against the possibility of Section 43-D(5) of the UAPA being used as a sole metric for denial of bail or for the wholesale breach of the constitutional right to a speedy trial.”
Thus, it is clear that K.A. Najeeb holds that Section 43D(5) will not operate where the detenu has undergone incarceration for a substantial period of the proposed sentence and there is no likelihood of the trial being completed within a reasonable time. In such circumstances, the imperatives of Article 21, protecting life and personal liberty, take precedence. The language of the judgment could not be clearer. There is no question, at this stage, of entering into the merits of the case.
In Gulfisha Fatima, the detenus have been incarcerated for nearly five years. Charges have not yet been framed. A large number of prosecution witnesses remain to be examined. There is, therefore, no realistic likelihood of the trial concluding within a reasonable period of time. K.A. Najeeb is thus applicable on all fours. On this reasoning, all the detenus ought to have been granted bail.
However, in Gulfisha Fatima, the Court departs from the precedent laid down in K.A. Najeeb. It does so by holding that K.A. Najeeb cannot be read to mean that an undertrial can be granted bail solely on the ground of prolonged incarceration. According to the Court, the legislative mandate of Section 43D(5) of the UAPA cannot be ignored. On this basis, it proceeds to apply Section 43D(5) to deny bail to Umar Khalid and Sharjeel Imam. This conclusion is accompanied by a considerable degree of linguistic sophistry designed to bolster the departure.
The Court notes that K.A. Najeeb held that “where the trial is not likely to commence or conclude within a reasonable period of time, constitutional courts retain the jurisdiction to grant bail notwithstanding the statutory restraint.” The judgment then introduces the caveat. It observes that K.A. Najeeb, “however, does not indicate as laying down a mechanical rule under which the mere passage of time becomes determinative in every case under a special statute.”
In Gulfisha Fatima, the Court lays down a set of new principles to determine whether bail ought to be granted:
“Delay does not operate as a trump card that automatically displaces the statutory restraint. Rather, delay serves as a trigger for heightened judicial scrutiny. The outcome of such scrutiny must be determined by a proportional and contextual balancing of legally relevant considerations including (i) the gravity and statutory character of the offence alleged, (ii) the role attributed to the accused within the alleged design or conspiracy, (iii) the strength of the prima facie case as it emerges at the limited threshold contemplated under the special statute, and (iv) the extent to which continued incarceration, viewed cumulatively in the facts of the case, has become demonstrably disproportionate so as to offend the guarantee of personal liberty under Article 21.”
All this may sound impressive and normatively appealing in terms of language. However, none of these tests finds any place in K.A. Najeeb. Had the Court been writing on a clean slate in this area of law, there would have been little cause for objection. But K.A. Najeeb is binding precedent. There can be no serious dispute that the Court has departed from its ratio.
