Opinion Denying bail to Umar Khalid and others, Delhi HC deviates from SC’s bail jurisprudence

Adding insult to injury, the High Court rationalised the glacial pace of the judicial process by remarking that “the pace of the trial will progress naturally and a hurried trial would be detrimental to the rights of both the parties.” What is this “natural pace” that comfortably accommodates a five-year pre-trial incarceration? This stands in contrast to other cases where convicted criminals, including those found guilty of heinous crimes like rape, are routinely granted parole. Does a conviction now afford more liberty than being an under-trial?

In their judgment, Justice Shailender Kaur and Justice Navin Chawla rejected the principle that prolonged imprisonment without trial is a ground for bail. For all the accused, the court detailed their specific, active roles in the “conspiracy”. This prima facie evidence, it concluded, creates an “arduous task” to balance individual liberty against the state’s duty to protect the integrity of the nation.

In Paragraph 133, the High Court refers to the speeches given by Umar Khalid in Amravati, calling for protests against the Citizenship Amendment Bill. It is strange that the High Court was convinced by the arguments pressed by the prosecution that giving such speeches caused violent riots and garnered international attention.

“Similarly, Appellant Umar Khalid also delivered speeches in Amravati on 17.02.2020, urging protests on 24.02.2020, which coincided with the State visit of the President of the USA, which is alleged by the prosecution to have deliberately been timed to cause violent riots on 23/24.02.2020 to garner international attention. The above role, as assigned by the prosecution to the Appellants, cannot be lightly brushed aside,” the order noted.

The Supreme Court, in the last few years, has restructured bail jurisprudence in respect to special statutes like UAPA, POCA, PMLA, etc. Under the Constitution, there’s a right to a speedy trial. There have been enough cases in which the Supreme Court has reiterated that even in special statutes, bail has to be the rule, not the exception.

For instance, in Javed Gulam Nabi Shaikh vs State of Maharashtra (2024), the SC held that the state could not oppose bail on the grounds of a crime’s seriousness if it could not guarantee a speedy trial, “irrespective of the nature of the crime”. This principle was expanded in Sheikh Javed Iqbal vs State of Uttar Pradesh (2024), where it was stated that restrictive statutory provisions could not override the power of constitutional courts to grant bail when Article 21 was infringed. In Jalaluddin Khan vs Union of India (2024), it was held that when a case for bail is made out, courts must grant it without hesitation. The Court emphasised that while the prosecution’s allegations may be serious, the judicial duty is to consider bail in strict accordance with the law.

However, the Delhi High Court’s order deviates from this line with respect to a speedy trial. That prolonged incarceration itself constitutes a punishment should have been a paramount consideration, given that the accused had already spent nearly five years in prison without a trial.

The matter will now be appealed before the Supreme Court, which will have the opportunity to rectify this judicial oversight. It is imperative that the apex court, as the guardian of constitutional rights and precedent, reaffirms the core tenets of its own jurisprudence. Its intervention is crucial to uphold the sanctity of the right to a speedy trial and prevent the erosion of a fundamental pillar of India’s criminal justice system.

The writer is an advocate practising at the Allahabad High Court, Lucknow