The Supreme Court on Monday refused to grant bail to former Jawaharlal Nehru University student Umar Khalid and activist Sharjeel Imam in the alleged “larger conspiracy” case linked to the 2020 Delhi riots, holding that both stood on a distinctly different footing from the other accused due to their alleged “central and formative roles” in the conspiracy. At the same time, the court granted bail to five co-accused, citing the subsidiary nature of allegations against them and undertaking an accused-specific assessment as required under the Unlawful Activities (Prevention) Act (UAPA).

A bench comprising Justices Aravind Kumar and NV Anjaria delivered the verdict, underlining that criminal law does not require uniform outcomes for all accused merely because allegations arise from the same transaction. Writing the judgment for the bench, Justice Kumar emphasised that the seriousness of the allegations, the statutory framework governing bail under the UAPA, and the specific role attributed to each accused must guide judicial discretion.

Distinction Between Khalid, Imam and Co-Accused

The court held that Khalid and Imam were “qualitatively on a different footing” from the remaining accused. While granting bail to Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd Saleem Khan and Shadab Ahmed, the bench made it clear that parity could not be claimed where the nature of allegations and the degree of alleged involvement differed substantially.

“All appellants do not stand on an equal footing as regards culpability,” the court observed, noting that the prosecution material, taken at face value, indicated that Khalid and Imam played a central role in conceptualising, planning and coordinating the alleged conspiracy, whereas the material against the other five reflected conduct of a subsidiary or facilitative nature.

Khalid has been in custody since September 13, 2020, while Imam has been incarcerated since January 28, 2020. Both are accused under the UAPA for allegedly being part of a coordinated conspiracy that culminated in communal violence in northeast Delhi in February 2020, which left 53 people dead and hundreds injured.

Bail Under UAPA and Prolonged Incarceration

One of the key legal issues before the court was whether prolonged incarceration alone could justify bail under the UAPA. The bench firmly rejected this proposition, holding that delay in trial cannot automatically override the statutory bar imposed by Section 43(D)(5) of the UAPA if the court is satisfied that a prima facie case exists.

“In prosecutions alleging offences that implicate the sovereignty, integrity or security of the State, delay cannot operate as a trump card that automatically displaces statutory restraint,” the bench said. It stressed that courts must first assess the gravity of the offence, the statutory scheme, the role attributed to the accused and the prima facie evidentiary value of the prosecution’s case.

The court clarified that while long incarceration is a relevant consideration, it cannot, by itself, displace the statutory mandate under the UAPA. Judicial scrutiny, the bench noted, is not ousted under Section 43(D)(5), but is confined to determining whether the prosecution material, on its face, discloses a prima facie case satisfying the ingredients of the alleged offences.

“Judicial restraint at this stage is not an abdication of duty but a fulfilment of the statutory mandate,” the bench said, describing the provision as creating a “distinct legal regime” that departs from ordinary principles of bail under general criminal law.

Rejection of ‘Dormant Trial’ Argument

The accused had argued that their prolonged incarceration amounted to punishment without trial, pointing to the filing of multiple supplementary charge sheets and the fact that dozens of witnesses were yet to be examined. They contended that they were being kept in custody due to prosecutorial inertia.

The Supreme Court rejected this contention, noting that the record, including findings of the Delhi High Court, did not support an overarching portrayal of an unjustifiably delayed or dormant trial sufficient to override the statutory embargo under the UAPA. The bench observed that while expeditious trial is a constitutional imperative, the mere passage of time cannot dilute the statutory threshold prescribed by Parliament.

Scope of ‘Terrorist Act’ Under UAPA

Another significant aspect of the judgment was the court’s interpretation of what constitutes a “terrorist act” under Section 15 of the UAPA. The accused had argued that the allegations against them, even if taken at face value, disclosed at best a case of public disorder and not terrorism.

Rejecting this argument, the bench held that the scope of a terrorist act under the UAPA is not confined to the use of bombs, explosives or firearms. The statutory framework, the court said, contemplates collective and coordinated activity and extends liability to those involved in planning, mobilisation, coordination or facilitation of terrorist acts, not merely those who physically execute violence.

“The provision cannot be narrowly confined to cases involving explosives or immediate physical violence,” the bench observed, adding that the law recognises the role of those who allegedly orchestrate or enable acts that threaten the security and integrity of the state.

Bail Granted to Five Co-Accused

While denying bail to Khalid and Imam, the court granted bail to five co-accused — Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd Saleem Khan and Shadab Ahmed — subject to stringent conditions. The bench clarified that the grant of bail did not dilute the seriousness of the allegations nor amount to a finding on guilt.

The conditions imposed included furnishing bonds of ₹2 lakh with two local sureties, remaining within the National Capital Territory of Delhi, surrendering passports, marking attendance twice a week before the Crime Branch of Delhi Police, refraining from contacting witnesses, and abstaining from participating in protests, public gatherings, or making public statements or social media posts related to the case.

Describing the decision as a “calibrated exercise of constitutional discretion,” the bench said the conditions were structured to balance individual liberty with the imperatives of national security.

Liberty to Renew Bail Plea

The court granted Khalid and Imam limited liberty to revive their plea for bail after the examination of protected witnesses or upon the completion of one year from the date of the present order, whichever is earlier. This, the bench said, would ensure that the accused are not foreclosed from seeking relief if circumstances materially change.

The Supreme Court also urged the trial court to expedite the proceedings, underscoring the need for timely adjudication in cases involving prolonged incarceration.

Background and Representation

The bail pleas before the Supreme Court arose from a September 2 order of the Delhi High Court, which had refused bail to nine accused and described Khalid and Imam as the “intellectual architects” of the violence. Notably, Khalid was not physically present in Delhi during the riots, and Imam was already in custody when the violence broke out — factors that were highlighted by the defence but did not persuade the courts at the bail stage.

Solicitor General Tushar Mehta and Additional Solicitor General SV Raju appeared for the Delhi Police, while senior advocates Kapil Sibal, Abhishek Manu Singhvi, Salman Khurshid, Siddharth Luthra, Siddhartha Dave and Siddharth Agarwal represented the accused.

A Precedent-Setting Ruling

The ruling is likely to have significant implications for bail jurisprudence under the UAPA. By reaffirming that prolonged incarceration alone cannot override statutory restrictions where a prima facie case exists, the Supreme Court has reinforced a cautious, statute-driven approach to bail in cases involving allegations of terrorism and threats to national security.

At the same time, by granting bail to co-accused after an individualised assessment, the court has underscored that even under stringent laws like the UAPA, judicial discretion remains alive, though tightly circumscribed by legislative intent and constitutional balance.