DC Edit | Delhi Riots: Bail Denial Regrettable

The Supreme Court’s order denying bail to Umar Khalid and Sharjil Imam, arrested under the Unlawful Activities (Prevention) Act (UAPA), 1967, for their alleged role in the Delhi riots case after five years in jail is an extension of a dangerous trend of the judiciary playing second fiddle to the executive and its demands, ignoring constitutional and historical role it has played as the protector and defender of citizen rights. The interpretations and observations of the law contained in the order suggest ominous signs for liberty in this country.

As per the court’s new dictum, a finding that there is a prima facie case against an accused can be the reason for incarcerating a person for years on end practically rings the death knell for several of the fundamental rights guaranteed in the Constitution, including those under Article 19 and Article 21. Courts have traditionally looked at laws that shift the burden of proof to the accused with suspicion; this order has forgone that option. Its position that delay in trial does not operate as a “trump card” under the Act only proves why the law is a draconian one. It undermines several of the principles the Supreme Court has advanced over the decades in defence of individual liberty.

And the worst is the apex court’s interpretation that the UAPA that deals with the offence of terrorist acts cannot be “interpreted narrowly to include only acts of blatant violence” and that it encompasses acts that “disrupt services and threaten the economy”. Its ramifications are unimaginable in a democracy where people resort to various forms of protests seeking basic rights which can disrupt services and impact the economy adversely. All such people’s movements have now been brought under the Act, one of the most misused laws in Indian legal history. Instead of finding avenues for protecting constitutional freedoms, the court has in fact gone beyond the legislative intent to uphold status quo in an utterly inequitable society. It is an indefensible order not only for the liberty of the two individuals in question. It has the potential to do irreparable damage to the very idea of personal liberty citizens’ rights so dear in a democracy. It must be noted that five other co-accused have been granted bail, while two exceptions have been made, drawing a clear distinction in the roles attributed to them by the prosecution.