Supreme Court disapproves own ruling denying bail to Umar Khalid in Delhi riots case - ‘Bail is rule, jail exception’

The Supreme Court on Monday, 18 May, disapproved its own ruling delivered by a different bench that denied bail to Umar Khalid in 2020 Delhi riots case, saying bail should be a rule, “jail exception” even in the cases linked to Unlawful Activities (Prevention) Act (UAPA), Bar and Bench reported.

The Supreme Court bench said, “Bail the rule and jail the exception is a constitutional principle flowing from article 21 and 22 and the presumption of innocence is the cornerstone of any civilised society governed by rule of law.”

“We have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception. Of course, in an appropriate case, bail can be denied having regard to the facts of that particular case,” it added.

The observation was made by the Supreme Court bench comprising Justices BV Nagarathna and Ujjal Bhuyan as it granted bail to Syed Iftikhar Andrabi, a resident of Kupwara in Jammu and Kashmir (J&K), who has been in jail since June 2020 in a narco-terrorism case.

While granting bail, the Supreme Court bench also disapproved of the ruling in Gulfisha Fatima v. State which concerned bail to 2020 Delhi riots accused. Umar Khalid has been awaiting trial, while others have been granted bail.

"We have serious reservations about judgment in Gulfisha Fatima. The judgment in Gulfisha Fatima would have us believe that Najeeb (a caselaw which says accused cannot be indefinitely jails) is only a narrow and exceptional departure from Section 43D(5), justified in extreme factual situations," the Supreme Court said.

It added: “It is this hollowing out of the import of the observations in Najeeb that we are concerned with. The broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release.”

The top court said Section 43D(5) of the UAPA cannot justify indefinite incarceration and must operate subject to Articles 21 and 22. The section outlines stringent bail restrictions.

Disapproving the judgment delivered by a two-judge bench in the Gulfisha Fatima case pertaining to Delhi riots, the apex court said it did not properly follow the judgment in KA Najeeb case which recognised long delay in trial as a ground for bail in cases under the UAPA.

It said that the reading of Najeeb case is binding by law and cannot be diluted.

“The broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release,” Justice Bhuyan stated, adding, “We make it clear that KA Najeeb is binding law and entitled to the protection of stare decisis. It cannot be diluted, circumvented or disregarded by the trial court, the High Court or even by benches of lower strength of this court.”

(With inputs from agencies)