[This is a guest post by Rehan Mathur.]
The SC passed a detailed order in the bail applications of several accused in the 2020 Delhi Riots case on 05th January 2026. As per the order, the SC granted bail to all but two of the accused; Umar Khalid and Sharjeel Imam. Throughout the 144-page order, the SC has relied upon the distinction between the central role of Khalid and Imam with the incidental role of the other five co-accused as the basis to deny bail to them. While several commentators have already said much about the order (see here and here), the piece attempts to unpack the order’s rationale by examining how the order determines delay attributable to the accused and its consideration of the prima facie case and role of the accused as relevant factors for determining bail pleas premised on delay and prolonged incarceration. It concludes that the order worsens the jurisprudence of bail in UAPA cases.
Article 21 & Prolonged Incarceration
The threshold for the grant of bail in UAPA Cases is extremely high courtesy Section 43D(5) of the UAPA and the SC’s decision in Zahoor Ahmad Shah Watali. Applications of bail, require the bail deciding judge to look only at the chargesheet and case diary to determine if the accusation against such person is prima facie true. If the accusation is prima facie true, bail cannot be granted. However, the Supreme Court recognised a completely new basis for grant of bail in UAPA cases in K.A. Najeeb. In Najeeb, the Court held that the presence of statutory restrictions under Section 43(D)(5) could not oust the ability of constitutional Courts to grant bail in cases to protect rights under Article 21 where the likelihood of trial being completed within a reasonable time was slim, and the period of incarceration already undergone was substantial.
It is important to note that Najeeb was decided by a bench of three judges, and is binding on smaller two judge benches. But this is completely ignored in the 5th January Order, which goes on to whittle down the import of Najeeb. The Court does this by arguing that the delay caused was attributable to the accused, and by the introduction of new considerations for grant of bail under this ground.
Delay Attributable to the Accused
The Order clarifies that the inordinate delay which forms the basis of grant of bail should not be attributable to the accused. The Court notes that several objections, deferment requests and sequencing issues were raised on behalf of the accused before the trial court. Particularly, the Court also mentions delay during the stage of disclosure under Section 207 CrPC [Para 38]: “At the stage of compliance under Section 207 CrPC itself, the Trial Court noted that despite repeated directions, certain accused declined to receive copies of the charge-sheet in the manner directed, insisted on alternate modes of supply, or filed successive applications, necessitating further procedural orders and contributing to delay at the pre-charge stage. These aspects emerge from the record and are not matters of conjecture.“
This analysis by the Court is faulty on two grounds. First, the right of an accused to receive documents relied upon by the prosecution has been recognised as a fair trial right under Article 21. Therefore, it follows, that to meaningfully exercise this right, the accused may file applications to seek supply of illegible, missing or unrelied-upon documents. The SC in Manish Sisodia rejected this exact argument of the ED by holding that in cases of voluminous records, the accused must be given a reasonable amount of time to inspect documents. In the present case, the record extended up to nearly 22,000 pages. The time taken by the accused during the 207 stage to meaningfully exercise their fair trial right cannot thus be equated with delay attributable to the accused to defeat the grant of bail.
Second, even assuming that the accused did contribute to the delay at the 207 stage, the order makes no mention of who caused this delay. In FIR No. 59 of 2020, there are 20 accused persons. The Court makes no analysis on which of these 20 accused persons caused the delay. It could be possible that none of the seven accused seeking bail before the Court had made any contribution to the delay. Would it then be reasonable to deny bail to Accused X, simply because Accused Y might have contributed to some delay? Such an analysis is entirely missing from the Order. The Court should have undertaken an individualised analysis of the delay caused by each accused rather than attributing delay to all of them. Despite the order placing so much emphasis on the individual role of each accused, it is ironic that the order failed to employ such an approach where it was most needed.
Mixing of two standards
After clarifying the scope of delay, the Court considered the four relevant considerations for the grant of bail under Article 21 [Para 56]:
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.
While the Supreme Court itself has negated the applicability of the gravity of the offence in deciding bail on the grounds of Article 21, the two other factors, namely, the accused’s role and the strength of the prima facie case are far more problematic.
Addressing the factor of prima facie case first, it is clear that introducing this factor is a clear mixing up of two different grounds. The question of whether a prima facie case is made out or not is anyways a question of the merits under Section 43D(5), which the Court can address. Whether a prima facie case exists or not has nothing to do with why Najeeb and other decisions have recognised such a ground for grant of bail. This ground attempts to remedy the prolonged incarceration of the accused, which if not for the grant of bail amounts to a violation of the Accused person’s Right to liberty and speedy trial under Article 21. Mixing of the two standards amounts to making the accused’s constitutional right subservient to the draconian requirements of a special statute, in complete ignorance of constitutional supremacy.
The Role of the Accused & the Purpose of Bail
The alleged role of the two accused is also the second problematic factor considered by the Court and forms its ultimate premise for denying them bail. This begs the question then, what really is the relevance of the alleged role played by an accused person for the grant of bail under Article 21? The order seems to throw some light on this [Para 100]:
The continued detention of those alleged to be the architects of the conspiracy may be required to safeguard broader security interests and deter future acts, whereas the rationale for continued incarceration of minor participants is comparatively attenuated once the investigative purpose is exhausted. The Court is therefore justified in calibrating its approach, ensuring that the pursuit of security does not eclipse the principle of proportionality.
The order seems to suggest that bail can be denied simply to protect security interests and deter future acts. But the purpose of denial of bail is very different. Deprivation of liberty by denial of bail is justified to ensure attendance, or prevent witness interference or tampering with evidence. Ultimately therefore, the law is settled that the object of bail is to secure the attendance of the accused at the trial. Using deterrence of future acts as a ground (especially in cases where the accused has no past antecedents) would amount to determining guilt and punishing the accused at the stage of bail, and turns the presumption of innocence on its head.
An accused who might have a tangential role may be highly influential with the ability to influence witnesses, indicating that role in an offence as such has nothing to do with bail. In any case, past antecedents, ability to influence witnesses, or risk of flight are objectively ascertainable, but the role of the accused is something that the Prosecution, and the State has control over. Allowing the role in the crime to be the basis for grant of bail allows States full control over who to make a case against, and prevent those it ascribes an ‘architectural role’ from grant of bail.
It must also be noted that the SC has granted bail under Article 21 in cases where the accused had a major role as per the Prosecution. In Najeeb, the accused was alleged to be one of the main ‘conspirators’ in the crime (who had absconded) yet, bail was granted. Similarly, in Umarmia, the Supreme Court granted bail to the alleged ‘mastermind’ who was charged under various provisions of the TADA amongst others for smuggling a large quantity of arms and ammunition.
While proponents of this position may seek to rely on Shaheen Welfare Assn. where the Court created 4 categories of undertrials on the basis of their role, such as by directing leniency for those who were roped in by virtue of Section 120-B or 147 IPC not being directly involved in any terrorist or disruptive act and those who were found possessing incriminating material. While the categorisations of the judgement may themselves be questionable, even the judgement notes that those who are directly involved in terrorist acts under Section 3 TADA, may be entitiled to grant of bail if they have been in prison for five years or more, and their trial is not likely to be completed within the next six months. The only exception to this rule is when the Court concludes that the accused’s antecedents are such that releasing them may be harmful to the complainant, their family or to witnesses.
This signifies that even the dictum of Shaheen Welfare Assn. permits an alleged ‘mastermind’ who has committed terrorist acts to be granted bail under Article 21, in cases of prolonged custody. This follows because the violation of Article 21 rights arising from prolonged incarceration with no likelihood of completion to trial affects all accused equally irrespective of the role or nature of their involvement in the alleged prosecution case. Thus, the SC order creates an irrelevant test based on the role of the accused to selectively decide who should be granted bail without any analysis of whether the accused will actually tamper with evidence, influence witnesses or abscond from trial.
Some Concluding Thoughts
The Order allows Umar Khalid and Sharjeel Imam to seek bail again after the expiry of a period of one year from the date of the order, or upon completion of examination of the protected witnesses relied upon by the prosecution. This direction reflects the approach of the Court when it in an earlier portion of the judgement notes [Para 50]:
The Court must also bear in mind that it is not confined to a binary choice between continued custody and unconditional release.Where delay becomes a matter of constitutional concern, appropriate directions for expeditious trial, prioritisation of witnesses, or periodic review of progress may be issued. Such measures are constitutionally significant responses that address the vice of delay while respecting the statutory framework. The liberty to renew a prayer for bail upon continued stagnation may also be preserved.
The issue with such directions is that they fundamentally miss the point of invoking Article 21 for seeking bail. An accused’s right under Article 21 is violated due to prolonged incarceration already suffered, and if there is no likelihood of trial finishing. Looking at only the latter without any consideration for the prolonged incarceration, leaves the accused at the mercy of the Prosecution and the Trial Court. Measures for expediting trials, prioritising witnesses may be relevant but cannot completely remedy the suffering caused by prolonged incarceration, since these directions may not actually result in movement, let alone completion of the trial. In the present case, the order provides for a direction for renewal of bail. But charges are yet to be framed in the present case, and thus, it is extremely unlikely that the examination of protected witnesses will take place. Why then should the accused suffer detention for an additional year? There is no answer.
The Order, thus adds to the already problematic jurisprudence of bail in UAPA cases, like Watali and Gurvinder Singh by mixing two independent grounds, by penalising the accused for exercising their fair trial rights and giving the state full authority to ascribe anyone with an ‘architectural role’ in an offence to deny them bail. Whether it will turn out to be the outlier, or the norm in the sea of inconsistent decisions on bail in UAPA, only time will tell.
