The issue of bail for those arrested under the stringent provisions of the Unlawful Activities (Prevention) Act (UAPA), 1967, continues to baffle the common man as some get it on the ground of an inordinate delay in commencement or conclusion of trial, while other similarly situated accused languish in jail.
Delhi High Court Grants Bail to Khurram Parvez
On June 10, a Delhi High Court Bench of Justices Navin Chawla and Ravinder Dudeja granted bail to Kashmiri human rights activist Khurram Parvez in a terror funding and conspiracy case registered under the UAPA by the National Investigation Agency (NIA). Khurram Parvez was arrested on November 22, 2021, by the NIA, which filed a chargesheet against him and six others on May 13, 2022, for allegedly hatching a conspiracy to recruit persons across various states for waging war against the Government of India, being in contact with foreign-based handlers and upon their directions, gathering intelligence on vital installations, security forces/agencies and passing on information to the LeT leadership based in foreign countries.
Siding with the liberal base philosophy, the High Court said, “The appellant’s (Khurram Parvez’s) rights under Article 21 of the Constitution of India (right to fair and speedy trial) need to be balanced and may even trump the restriction imposed under Section 43D(5) of the UAPA (which prescribed twin conditions for bail).” However, Parvez can’t walk free as a separate NIA case is pending against him.
Supreme Court Denies Bail to Umar Khalid and Sharjeel Imam
While the Delhi High Court granted bail to UAPA accused Khurram Parvez following the principle of “bail is the rule and jail is an exception”, the Supreme Court on January 5 this year turned down the bail pleas of Delhi riots case accused under the UAPA, Umar Khalid and Sharjeel Imam, even as it ordered the release of five co-accused.
Highlighting the “central and formative role” attributed to accused Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case, the Supreme Court on January 5 dismissed their bail pleas even as it granted bail to five other accused. “This court is satisfied that the prosecution material, taken at face value as required at this stage, discloses a prima facie attribution of a central and formative role by appellants... Umar Khalid and Sharjeel Imam in the alleged conspiracy,” a Bench of Justices Aravind Kumar and NV Anjaria said. “The material suggests involvement at the level of planning, mobilisation and strategic direction, extending beyond episodic or localised acts. The statutory threshold under Section 43D(5) of the UAPA, therefore, stands attracted qua these appellants,” the Bench said.
Why Getting Bail Under UAPA is Difficult
For a person accused under the UAPA, getting bail is a difficult proposition for three reasons. Firstly, Section 43D(5) of the UAPA says that notwithstanding anything contained in the CrPC (now replaced by the Bharatiya Nagarik Suraksha Sanhita or BNSS), no person accused of an offence punishable under Chapters IV and VI of the UAPA shall be released on bail or on his own bond, unless the public prosecutor has been given an opportunity of being heard on the bail application. Secondly, the proviso to Section 43D(5) says that such accused person shall not be released on bail or on his own bond if the court on a perusal of the case diary or the final report (chargesheet) is of the opinion that there are reasonable grounds to believe that the accusation against such person is prima facie true. Thirdly, Sub-Section (6) of Section 43D further clarifies that the restrictions on grant of bail specified in Sub-Section (5) would be in addition to the restrictions under the CrPC or any other law for the time being in force on granting of bail.
Conflicting Verdicts and the Need for Clarity
More than four months after a two-judge Bench of the Supreme Court denied bail to Khalid and Imam, another two-judge Bench on May 18 questioned it for ignoring a “binding precedent” laid down by a three-judge Bench in the KA Najeeb case (2021). “The statutory embargo of Section 43D(5) of the UAPA must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception. Of course, in an appropriate case, bail can be denied having regard to the facts of that particular case,” the Bench led by Justice Nagarathna said.
Following questions raised by a coordinate Bench over denial of bail to Khalid and Imam, a Bench led by Justice Aravind Kumar on May 22 referred to a larger Bench the legal question involving the matter after the Delhi Police sought reference of the issue to a larger Bench in view of the conflicting verdicts. Now it’s for the Chief Justice of India to set up a larger Bench to settle the law on grant of bail under the UAPA once and for all.
