Umar Khalid verdict raises questions about judicial discretion overruling bail even after long incarceration

The Delhi High Court, in the Umar Khalid bail judgment, agrees wholeheartedly that long incarceration and delay in trial under the draconian Unlawful (Activities) Prevention Act are violations of fundamental rights, but says judges can deny bail in select cases on the strength of “peculiar” facts.

The September 2 judgment highlights the cause of personal liberty and speedy trial while conforming to the stringent conditions for bail under Section 43D (5) of the Act.

The 133-page verdict acknowledged that “constitutional courts are well within their powers to grant bail to an undertrial who has suffered a long period of incarceration pending trial, thereby, setting him at liberty”. The judgment also does not hesitate to admit that courts had a duty to “secure the right to a speedy trial of an accused, flowing from Article 21 of the Constitution”.

Nevertheless, it reasoned that long incarceration and delay in trial cannot be used as an “universally applicable rule” to guarantee bail in all UAPA cases. “No single circumstance alone can serve as a universal yardstick to grant or refuse bail to an individual” and courts have discretion to deny bail on the basis of the “peculiar facts and circumstances of each case,” the High Court had observed.

However, the Supreme Court in Union of India versus K.A. Najeeb has held that “the presence of statutory restrictions like Section 43D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III [fundamental rights] of the Constitution”.

The apex court, in the 2021 judgment by a three-judge Bench, had called for the need to harmonise the restrictions of the UAPA provision with the constitutional mandate to protect fundamental rights.

“Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well-harmonised. Whereas at the commencement of proceedings, Courts are expected to appreciate the legislative policy against the grant of bail, but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D(5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial,” the Supreme Court had held.

The K.A. Najeev case Bench had observed that the court’s duty was to consider a case for the grant of bail in accordance with the law, and it was settled law that “bail is the rule and jail is an exception”.

Even the Umar Khalid judgment refers to the 2021 judgment, noting that “though the rigorous provisions laid down by such special statutes [UAPA] place an embargo on courts, ordinarily leading to the rejection of bail to an accused, the same does not denude the ‘discretion’ of the constitutional courts to grant bail”.

Bail could be granted if a case was made out for the grant of bail and stringent conditions in the statute were satisfied.

“If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution,” the top court had observed in Justice A.S. Oka’s (now retired) judgment in Jalaluddin Khan versus Union of India in August 2024.

Justice Oka, hearing in a case under the PMLA, which has similar stringent conditions as in UAPA, suggested that accused persons could be granted bail after giving an undertaking that they would not seek adjournments and cooperate with the trial in future.

The top has argued that the prosecution cannot oppose bail merely on the ground that the offence alleged was a serious one. “If the alleged offence is a serious one, it is all the more necessary that the prosecution should ensure that the trial is expedited and concluded at the earliest… the court is not deprived of the power to grant bail even in special enactments,” the Supreme Court has noted in Naval Kishore Kapoor versus NIA.