‘Bail Is Rule, Jail Exception Even In UAPA’: Supreme Court Questions Umar Khalid Bail Verdict

New Delhi: The Supreme Court on Monday expressed “serious reservations” on its recent verdict denying bail to former JNU student leaders Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case, saying “bail is the rule and jail is the exception” even in terror-related cases under the stringent Unlawful Activities (Prevention) Act (UAPA).

A Bench of Justices BV Nagarathna and Ujjal Bhuyan made the observations while granting bail to Syed Iftikhar Andrabi, a Jammu and Kashmir resident accused in a narco-terror funding case investigated by the National Investigation Agency.

The Bench openly criticised the interpretation adopted in the judgment delivered in Gulfisha Fatima v State, the ruling under which Umar and Sharjeel were denied bail.

The court cautioned against weakening the constitutional safeguards laid down in the landmark Union of India vs KA Najeeb case.

“We have serious reservations about judgment in Gulfisha Fatima,” the Bench observed.

The court said the Gulfisha Fatima ruling incorrectly gave the impression that the KA Najeeb judgment, which recognised prolonged incarceration and delay in trial as valid grounds for bail under UAPA, was only a “narrow and exceptional departure”.

“It is this hollowing out of the import of the observations in Najeeb that we are concerned with,” the court remarked.

‘Smaller Benches Can't Dilute Larger Bench Rulings’

In one of the sharpest observations in the judgment, the Supreme Court criticised a growing trend where smaller Benches allegedly dilute the effect of larger Bench decisions without formally disagreeing with them.

The Bench underscored that judicial discipline requires smaller Benches to follow rulings delivered by larger Benches.

“A smaller Bench cannot dilute, circumvent or disregard the ratio of a larger Bench,” the court said.

“If a smaller Bench cannot agree with a larger Bench, it can only refer the case to the Chief Justice of India for allocation to a larger Bench,” the Supreme Court observed.

The remarks are being viewed as a direct disapproval of subsequent rulings that narrowed the scope of the KA Najeeb judgment.

‘More Serious The Accusations, Speedier The Trial Must Be’

Reiterating constitutional protections under Articles 21 and 22, the Supreme Court said stringent provisions of UAPA cannot override the right to liberty and speedy trial.

“The statutory embargo of Section 43D(5) UAPA must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution,” the Bench held.

“Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception.”

The court stressed that undertrial incarceration cannot become a form of punishment merely because allegations involve terror offences.

“Ideally, the more serious the accusations are, the speedier the trial should be,” the Bench said.

‘Watali Cannot Justify Indefinite Incarceration’

The court also clarified that the earlier judgment in NIA vs Zahoor Ahmad Shah Watali, often cited to oppose bail in UAPA cases, cannot be used to justify endless pre-trial imprisonment.

The Bench warned that accepting an overly restrictive interpretation would effectively make bail impossible in UAPA cases, even if trials drag on for years.

“If this test is accepted, the State needs only to satisfy a low prima facie threshold while the trial may continue for years, with the result that pre-trial incarceration begins to acquire a post-trial punitive character,” the judgment noted.

The court said this would directly violate the constitutional guarantee of personal liberty.

Concerns Over Low UAPA Conviction Rate

The judgment also highlighted alarming statistics regarding conviction rates in UAPA cases across India.

Referring to National Crime Records Bureau data, the court noted that the all-India conviction rate in UAPA cases ranged between just 1.5% and 4% between 2019 and 2023.

In Jammu and Kashmir, the situation was even starker, with annual conviction rates remaining below 1%.

“It means that at the end of the trial, there is 99% possibility of acquittal in such cases,” the court observed, questioning prolonged incarceration of undertrials.

The Andrabi Case

The case before the court involved Syed Iftikhar Andrabi, a resident of Handwara in Jammu and Kashmir’s Kupwara district.

The National Investigation Agency alleged that Andrabi was part of a cross-border narcotics syndicate that funnelled money to terror outfits, including Lashkar-e-Taiba and Hizbul Mujahideen.

He was arrested in June 2020 and has spent nearly six years in custody awaiting trial.

While granting him bail, the Supreme Court imposed conditions, including periodic appearance before police authorities, cooperation with the investigation and surrender of his passport.