Opinion Interim bail for Mahesh Raut is not justice

The legal labyrinth for any UAPA accused begins with the formidable wall of Section 43D (5) and the precedent set in NIA v Zahoor Watali by a two-judge bench of the Supreme Court in 2019. However, the SC in 2024 observed that Watali shouldn’t be considered a precedent. According to Watali, for bail, a court should largely accept the prosecution’s allegations at face value. It forbade a mini-trial and made it exceedingly difficult for any court to grant bail. However, this did not make bail impossible; it simply required a rigorous and careful judicial examination to see if the prosecution’s case, even on its surface, held up against the strict provisions of UAPA.

This is precisely the duty that the Bombay High Court undertook in its September 2023 judgment granting bail to Mahesh Raut. The High Court did not defy Watali; it meticulously applied it. It concluded that the evidence presented by the NIA, even if taken as true, did not prima facie suggest that Raut had committed a “terrorist act” under Section 15 of the UAPA. The court found that, at most, the evidence pointed towards membership of a banned organisation (offences under Sections 13 and 38), not the graver charges of terrorism that trigger the UAPA’s harshest bail restrictions. This is a critical legal distinction that the HC expertly navigated, finding that “there is no material on record to indicate that, there are reasonable grounds for believing that the accusations against Raut under Sections 16, 17, 18, 20 and 39 of UAP Act are prima-facie true.”

What happened next seems to be a procedural paralysis. When the NIA appealed against the Bombay HC judgment, the Supreme Court, instead of engaging with the merits of the High Court’s reasoning, simply granted a stay on the order at the prosecution’s request. It did not find the High Court’s judgment flawed or legally erroneous; it just pressed pause on Raut’s liberty, pending a future hearing that has yet to materialise. A citizen’s freedom, legally affirmed by a High Court, was put into indefinite suspension.

It is in this context that we must view the Supreme Court’s own landmark judgment in Union of India v K.A. Najeeb. In this 2021 verdict, a three-judge bench of the Supreme Court established a vital constitutional safeguard. It ruled that the fundamental right to a speedy trial under Article 21 is non-negotiable and can empower a court to grant bail even in a UAPA case, regardless of the charges, if the undertrial has been incarcerated for an unconscionably long time. The Court held that “rigours of Section 43D (5) of UAPA will melt down where there is no likelihood of trial being completed within a reasonable time”. This judgment was meant to be the judiciary’s answer to the problem of UAPA being misused.

The Supreme Court had two clear legal pathways to resolve Raut’s situation. The first was to hear the appeal and decide if the Bombay High Court’s order granting bail to Raut was wrong. The second, and perhaps more straightforward, was to apply its own binding precedent from Najeeb. Given that Raut has been in jail for over six years with no end to the trial in sight, the Court could have upheld the bail on the grounds of this inordinate delay alone.

It chose neither. Instead, it opted for a third path: Granting short-term, compassionate bail. The order’s own wording reveals the deep contradiction at play: “Inasmuch as the applicant… is seeking interim bail on medical grounds, coupled with the fact that he was actually granted bail by the High Court… we are inclined to grant medical bail…”.

This single phrase is a tacit admission of the validity of the High Court’s order. The Supreme Court is using the merit of the stayed judgment as a justification for granting temporary relief. This is a profound legal inconsistency. If the High Court’s judgment is sound enough to be a factor in granting interim bail, why is it not sound enough for the Supreme Court to lift its own stay and allow regular bail to proceed?

This approach substitutes a discretionary favour for a legal right. The core issue is not that Raut deserves compassion; it is that he is legally entitled to his liberty. By keeping the bail order in limbo while offering a temporary reprieve, the Supreme Court is evading its primary judicial duty. It is managing a crisis of its own making — a crisis created by its failure to either adjudicate the appeal or apply its own Najeeb doctrine — with an ad-hoc solution that solves nothing. This leaves a citizen’s most precious right hanging, not on the scales of justice, but on the whims of a calendar.

The writer is Delhi-based criminal lawyer