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.
What is more troubling is that the Court has ignored two important judgments that reiterated and reinforced K.A. Najeeb. The principle was reaffirmed in Sheikh Javed Iqbal v. State of Uttar Pradesh (2025), where the Supreme Court held:
“This Court has, time and again, emphasised that the right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb, being rendered by a three-judge Bench, is binding on a Bench of two judges like us.”
Thus, the two-judge Bench in Sheikh Javed Iqbal correctly held that (i) statutory restrictions cannot come in the way of the constitutional imperative under Article 21, and (ii) since Sheikh Javed Iqbal was being decided by a two-judge Bench, it was bound to follow the three-judge Bench decision in K.A. Najeeb. This binding force of K.A. Najeeb appears to have been lost on the two-judge Bench in Gulfisha Fatima.
In Javed Gulab Nabi Sheikh v. State of Maharashtra (2024), the Supreme Court, after reproducing paragraph 17 of K.A. Najeeb, observed as follows in paragraphs 17 and 18:
“17. If the State or the prosecuting agency, including the court concerned, has no wherewithal to provide or protect the right of an accused to a speedy trial as enshrined under Article 21 of the Constitution, then the State or the prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.
18. We may hasten to add that the petitioner is still an accused, not a convict. The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, and applies irrespective of the nature of the crime.”
Once again, the presumption of innocence that attaches to an undertrial appears to have been overlooked by the two-judge Bench in Gulfisha Fatima.
It is therefore evident that Gulfisha Fatima has not only departed from K.A. Najeeb, but has also ignored Sheikh Javed Iqbal and Javed Gulab Nabi Sheikh. If the Court intended to chart a different doctrinal course, judicial discipline required that the matter be placed before the Chief Justice for reference to a larger Bench of five judges to reconsider the correctness of K.A. Najeeb. That course was not adopted. Instead, the Court purported to “interpret” K.A. Najeeb and, in the process, departed from it.
The conclusion that K.A. Najeeb cannot be read to permit the grant of bail under the UAPA solely on the basis of prolonged incarceration runs directly contrary to its ratio. On the application of binding precedent, all the detenus in Gulfisha Fatima ought to have been granted bail.
A serious issue arises out of Gulfisha Fatima: whether judges of the Supreme Court are bound by the doctrine of precedent, or whether individual Benches may decide cases involving the most fundamental question of personal liberty under the Constitution on their own understanding of the law, in disregard of settled precedent. To say that judicial discipline has been breached by the failure to follow K.A. Najeeb would, if anything, be an understatement.
As providence would have it, the very next day after the judgment in Gulfisha Fatima was pronounced, the Supreme Court in Arvind Dham v. Directorate of Enforcement faithfully applied K.A. Najeeb. The sooner the judgment in Gulfisha Fatima is set aside, the better.
A new understanding of “terrorism”
The two-judge Bench in Gulfisha Fatima has also evolved a new understanding of terrorism, and that too at the stage of bail.
Section 15 of the UAPA defines a “terrorist act” as follows:
“15. Terrorist act.—(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India, or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,—
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals, or by any other substances (whether biological, radioactive, nuclear or otherwise) of a hazardous nature, or by any other means of whatever nature, to cause or likely to cause—
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country,
…commits a terrorist act.”
In Gulfisha Fatima, the Court invokes the expression “by any other means of whatever nature” to expand the definition of terrorism in a manner that is not only unwarranted but untenable in law. It holds as follows:
“The means by which such acts may be committed are not confined to the use of bombs, explosives, firearms, or other conventional weapons alone. Parliament has consciously employed the expression ‘by any other means of whatever nature,’ which expression cannot be rendered otiose.”
This approach is deeply flawed. It is evident from the record that none of the seven accused indulged in any act involving the use of bombs, dynamite, other explosive substances, inflammable substances, firearms or other lethal weapons, poisonous or noxious gases, or any other substances, whether biological, radioactive, nuclear or otherwise, of a hazardous nature.
Further, it is a matter of record that both Umar Khalid and Sharjeel Imam consistently advocated non-violent methods in the protests against the Citizenship Amendment Act, 2019. They admittedly engaged in making speeches, organising chakka jams, and acts that resulted in disruption of civic life. But these are not acts of terrorism. They are not embraced within Section 15(1)(a) of the UAPA. The Court seeks to bring such conduct within the phrase “by any other means of whatever nature.” With respect, this is a gross error.
It must be appreciated that the UAPA is a criminal statute, and a draconian one at that, prescribing severe penalties including life imprisonment and, in certain cases, the death penalty. It is settled law that such statutes must be interpreted strictly. Further, by the application of the rule of ejusdem generis, the phrase “by any other means of whatever nature” must take colour from the specific means enumerated in Section 15(1)(a). Those means are uniformly characterised by the use of hazardous substances or violent instrumentalities. The residuary phrase cannot be stretched to cover conduct fundamentally different in nature.
To read protest activity, even where it results in disruption of civil supplies, into Section 15(1)(a) in the absence of the use of hazardous substances or violent means is to collapse the statutory distinction between terrorism and public disorder.
As the companion editorial aptly puts it, every riot may be a crime, but not every riot is a UAPA crime.
Conspiracy and a differential treatment of detenus
In Gulfisha Fatima, the Court has treated Umar Khalid and Sharjeel Imam differently from the other detenus. It observes that:
“In cases alleging conspiratorial conduct, it becomes necessary to distinguish between the existence of a conspiracy and the position occupied by an accused within the alleged framework. While conspiracy may supply the overarching context, Section 43D(5) requires attention to the nature, extent, and character of participation attributed to the individual.”
On this basis, the Court holds that:
“Umar Khalid and Sharjeel Imam are prima facie attributed a central role and alleged to be ideological drivers of the alleged conspiracy …in contradistinction, the remaining accused, namely Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan, Shadab Ahmad, Athar Khan, and others, are consistently described as low-level facilitators.”
It is thus clear that, in the context of the offence of criminal conspiracy, Umar Khalid and Sharjeel Imam are alleged to have played roles distinct from the other detenus, and it is on this basis that bail has been denied to them while being granted to the others.
In doing so, the Court has departed from a long and settled line of authority governing the law of criminal conspiracy.
It is well settled that where allegations of criminal conspiracy are made under Section 120A of the IPC, all conspirators are treated equally in terms of liability. Section 120A defines criminal conspiracy as an agreement between two or more persons to do, or cause to be done, an illegal act or a legal act by illegal means. The agreement itself constitutes the offence. It is the agreement that is punishable, not the achievement of the object of the conspiracy.
Section 120B prescribes the punishment for criminal conspiracy, which is the same as for abetment of the offence that is the object of the conspiracy. Once a conspiracy is established, all parties to the agreement are liable equally, irrespective of their individual roles or the extent of their participation. The distinction between a supposed “mastermind” and a “peripheral participant” is irrelevant for the purpose of liability for the conspiracy itself. Each conspirator is vicariously liable for acts done by others in furtherance of the common object.
Where the object of the conspiracy is actually carried out, additional substantive offences may be attracted, and courts may then differentiate between accused persons on the basis of direct involvement for the purpose of punishment for those offences. However, for the offence of criminal conspiracy under Sections 120A and 120B IPC, the position is clear. Once the agreement is proved, liability is joint and equal. This principle has been consistently affirmed in a long line of decisions.
In Major E.G. Barsay v. State of Bombay (1961), the leading authority on criminal conspiracy, the Supreme Court held:
“Section 120A of the Indian Penal Code defines ‘criminal conspiracy’ and under that definition, ‘when two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.’ Each participant is liable as a principal offender for acts done by co-conspirators in pursuance of the conspiracy… The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all parties should agree to do a single illegal act. It may comprise the commission of a number of acts.”
The Court further clarified:
“The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done… The mere fact that all of them could not be convicted separately in respect of each of the offences has no relevance in considering whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to commit illegal acts, though for individual offences all of them may not be liable.”
In Yash Pal Mittal v. State of Punjab (1977), the Supreme Court reiterated that:
“The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy, as long as they are co-participators in the main object of the conspiracy… There must be unity of object or purpose, but there may be plurality of means, sometimes unknown to one another, amongst the conspirators. In achieving the goal, several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be in furtherance of the object of the conspiracy.”
Similarly, in Ajay Aggarwal v. Union of India (1993), the Supreme Court held that:
“The offence in criminal conspiracy is to enter into (a) an agreement, (b) by two or more persons by whom it is effected, and (c) a criminal object, which may be the ultimate object of the agreement or the means.”
The Court further observed:
“The offence is complete as soon as there is a meeting of minds and unity of purpose between the conspirators to do an illegal act or a legal act by illegal means. Conspiracy itself is a substantive offence and distinct from the offence to commit which the conspiracy is entered into.”
This settled position was subsequently followed in State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005).
Across this long line of authority on criminal conspiracy, the principle of joint and equal liability has been consistently affirmed. The agreement binds the accused collectively. Once participation in the agreement forming the object of the conspiracy is established, culpability remains the same for all, irrespective of individual roles, degree of knowledge, or relative prominence within the alleged conspiracy.
In this legal framework, there could have been no differential treatment between Umar Khalid and Sharjeel Imam on the one hand and the other five detenus on the other in the context of the charge of criminal conspiracy. Once the Court found it fit to grant bail to the five detenus, Umar Khalid and Sharjeel Imam ought to have been granted bail as well.
The judgment in Gulfisha Fatima is per incuriam and ought not to be followed by other Benches. However, it would be far preferable for the matter to be referred to the Chief Justice to be placed before a bench of five judges to reconcile the law on a subject as critical as pre-trial bail in cases under the UAPA.
