Introduction

Umar Khalid bail rejected yet again. Yes, of course. But the task this time in the Supreme Court of India (SCI) was so difficult that it had to lead to the perversion of bail jurisprudence in India. In this blog post, I am just discussing the perversion. The Umar Khalid case has already been discussed in good detail by me earlier in Umar Khalid Bail Judgment: The Victory of Illegal Nationalism Now.

Bail Jurisprudence in India

The bail jurisprudence in India with respect to prolonged incarceration is same for both ordinary criminal statutes like the Indian Penal Codes (IPC) and special statutes like the Unlawful Activities (Prevention) Act (UAPA) vide Shaheen Welfare Association v. UOI and UOI v. K. A. Najeeb.

The prolonged incarceration because of undue delay in trial per se invokes Article 21 of the Indian Constitution, and thus there is consequential necessity to release the under-trial prisoner on bail ignoring the stringent provisions of special statutes like section 43D(5) of the UAPA, which puts a duty on the court granting bail to satisfy itself that there are no reasonable grounds for believing that the accusation against the accused person is prima facie true.

The jurisprudence is simple and straightforward that the right to speedy trial covered under Article 21 of the constitution trumps over the stringent provisions of special statutes like the UAPA in a constitutional court, i.e. the High Courts (HC) and the SCI.

The HCs and the SCI are not required to satisfy themselves with respect to the “prima facie true” condition or any other similar condition before granting bail in the case of undue delay in a trial. In other words, an unfairly incarcerated accused person is eligible to get bail in constitutional courts on the same premise under the ordinary statutes as well as under the special statutes.

The Perversion vide the Umar Khalid Bail Judgment

Before I discuss the perversion, let me quote a para from the Umar Khalid bail judgment:

At the threshold, it is necessary to clarify the legal contours within which the plea of delay operates in prosecution under the UAPA. Delay engages Article 21 at two distinct constitutional planes. First, delay may be of such magnitude and character that continued detention becomes per se unconstitutional, irrespective of the strength of the prosecution case. Second, delay may be pressed as a circumstance to contend that the statutory satisfaction under Section 43D(5) stands diluted or displaced. The present case, on an examination of the record, does not meet either threshold. The inquiry that follows is therefore confined to whether the delay alleged is of such a nature as to constitutionally eclipse the statutory embargo, and not whether delay exists in the abstract.

It is just not possible to make any practical sense out of the above quoted para. I have never heard of different constitutional planes with respect to Article 21 right giving different rights under Article 32 or 226 to invoke the jurisdiction of constitutional courts on “different planes” of litigation. This is seriously amusing. (Kehna kya chahte ho?)

And then the court would say the facts (as per the records of the case) don’t meet the threshold of either of the two “different planes”; so, therefore Article 21 right will now invoke the jurisdiction of the constitutional court to test whether a new dimension of constitutional “eclipse” can win over the statutory embargo.

I have never seen Article 21 right under such desperation. If somebody has to play in so many dimensions to interpret his most basic fundamental right of life and personal liberty, he is better off being behind bars. LOL.

Jokes aside, the above-quoted para is not inconsequential. The above preface has been set up to pervert the bail jurisprudence in India through introduction of a new approach to deal with prolonged incarceration cases under special statutes like the UAPA. Of course, no explanation has been given about any of the three dimensions mentioned in the preface.

The original inquiry is simple and straightforward that whether there is any undue delay in the trial, and the dilatory tactics of the accused also form part of the inquiry. Additional consideration is whether releasing the accused person on bail would jeopardize the trial so much that even his unconscionable incarceration because of undue delay can be justified. There can be no other consideration when the only question is whether an accused person can be granted bail on the ground of prolonged incarceration.

However, the SCI in Umar Khalid bail judgment has put special statutes like the UAPA on a different pedestal, which statutes, according to the court, list offenses that implicate the sovereignty, integrity, or security of the state. In court’s own words as under-quoted:

In prosecution alleging offenses which implicate the sovereignty, integrity, or security of the State, delay does not operate as a trump card that automatically displaces 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 offense 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 he case, has become demonstrably disproportionate so as to offend the guarantee of personal liberty under Article 21.

Of the four considerations mentioned in the above-quoted para of the Umar Khalid bail judgment, the first three are irrelevant from the perspective of inquiry with respect to prolonged incarceration. Basically, the bail jurisprudence in India with respect to bail on the ground of prolonged incarceration has been rendered otiose by this judgment. This is what we call perversion.

The bail on the ground of prolonged incarceration has been made so subjective by introduction of new irrelevant considerations that this ground has more or less ceased to exist, which finds further support from the fact that the first three considerations are also the considerations for grant of bail under the statute without alleging Article 21 right qua prolonged incarceration. In other words, the “Sentinel of the Qui Vive” has wrongfully appropriated the Article 21 right. (Ab har jagah, “Chowkidar Chor Hai!”)

Illogical Propositions in Umar Khalid Bail Judgment

Though, practically, this judgment has just been written to deny bail to Umar Khalid and Sharjeel Imam, but the propositions made in it are binding precedents for subordinate courts. I tweeted yesterday that I find it beneath my dignity to comment on such illogical propositions, so I will not comment on them. I will just list the most glaring ones here-in-under:

• Prolonged pre-conviction incarceration for an alleged central or organizing role in a criminal conspiracy is less punitive in character than that for an alleged peripheral or episodic role.
• Directions for expeditious trial can adequately address the concern expressed under Article 21, which on extension can also mean that a police custody death can be compensated by blood money to victim’s family members.
• Prosecutions under special statutes like the UAPA reflect the state’s obligation to protect the life and security of the community under Article 21.
• Conduct characterized by the parliament as implicating the security of the state and the peace of society are relevant in assessing Article 21 claims, basically meaning that an alleged UAPA accused person’s (read “terrorist”) right to life and personal liberty claim is not at par with others (in other words, he can be killed in custody or detained without evidence if an allegation under the UAPA has been made).
• Bail solely on the ground of prolonged incarceration would neutralize special statutes like the UAPA, meaning thereby that it is the objective of special statutes like the UAPA to keep under-trial accused persons in jail.

Supporting Quotes from the Umar Khalid Bail Judgment

Where the attribution suggests a central or organising role in the alleged design, the need for circumspection before constitutional intervention displaces a statutory embargo is correspondingly greater. Conversely, where the role is peripheral or episodic, prolonged incarceration may more readily assume a punitive character.

Thereafter, where the plea of delay and prolonged incarceration is pressed, the Court will consider whether the circumstances warrant constitutional intervention in terms of the principles noticed above, or whether appropriate directions for expeditious trial would adequately address the concern expressed under Article 21.

Article 21 protects individual liberty. It also, within the same guarantee of life, reflects the State’s obligation to protect the life and security of the community. In prosecutions alleging threats to public order and national security, the Court cannot be unmindful that both dimensions are engaged.

Under the UAPA, Parliament has legislatively characterized certain conduct as implicating the security of the State and the peace of society. That legislative characterization does not conclude the judicial inquiry, but it is not constitutionally irrelevant. It forms part of the context in which the Article 21 claim is assessed.

To read Najeeb (supra) as mandating bail solely on account of prolonged incarceration, irrespective of the statutory context or the nature of the allegations, would be to attribute to the decision a consequence it neither intended nor supports. Such a construction would also lead to an interpretive absurdity, whereby a special statute enacted by Parliament to address offenses implicating the sovereignty, integrity, and security of the State would stand effectively neutralized by the mere passage of time, even at a pre-trial stage.

The Sanctity of Article 21 Right

The Article 21 right is the most important right under the Indian Constitution. It is not only available to citizens but also to foreigners present in India. The way the SCI has abused it in the Umar Khalid bail judgment needs to be marked for eternity, so that no more such attempts are made in the future. Let me clarify what it really means against what the SCI has interpreted it to mean.

Article 21 doesn’t grant but recognizes a natural right to life and personal liberty of humans. It is subject to procedure established by law, which only recognizes the need of the society to regulate human affairs through law made by an organ of the state, i.e. parliament. This doesn’t give powers to either judiciary or executive to curb Article 21 right by mere orders, not even during emergency.

The SCI can indeed interpret law and pass orders, which orders then become part of the law of the land appended to the interpreted law. The SCI has interpreted the UAPA to be establishing a fair procedure for infringing the Article 21 rights of the accused persons under the UAPA. Earlier, in UOI v. K. A. Najeeb, the SCI clearly stated that the stringent procedures of special statutes are subject to the presumption of no undue delay under the statute. When such a presumption is rebutted, Article 21 right of speedy trial automatically quashes the stringent condition of the statute without any ifs and buts.

However, now in Umar Khalid bail judgment, the SCI has approved “undue delay” as part of the procedure established under the UAPA by including things like gravity of offense, nature of accusation, prima facie case, etc, as part/adjunct of the prolonged incarceration inquiry without explicitly distinguishing UOI v K. A. Najeeb — Najeeb being a larger bench judgment could not have been over ruled. In other words, prolonged incarceration can be proper if gravity of offense is heavy or the nature of accusation is damning notwithstanding “undue delay”.

First, the UAPA has not established a procedure as held by the SCI in Umar Khalid bail judgment — the SCI has completely misinterpreted the UAPA with respect to Article 21 right. Secondly, even if assuming the UAPA does setup a procedure allowing prolonged incarceration even with “undue delay”, such a procedure would be an arbitrary procedure and would be hit by numerous judgments of the SCI including Maneka Gandhi v UOI.

In nutshell, the SCI has not only laid down bad law in Umar Khalid bail judgment but also perverted the basic idea of Article 21 right and bail jurisprudence in India, established through catena of SCI judgments including UOI v K. A. Najeeb. Of course, the Umar Khalid bail judgment is amenable to review.

External Links:

Umar Khalid Bail Judgment by the Supreme Court of India

UOI v K. A. Najeeb