Constitution of India – Art.21 – Unlawful Activities (Prevention) Act, 1967 – s.43D(5) – Delhi Riots, 2020 – Bail sought by accused-appellants considering the prolonged incarceration, and constitutional plea u/Art.21 – Prosecution case that the appellants conspired to orchestrate and execute the 2020 Delhi Riots as a form of protest against enactment of the Citizenship Amendment Act, 2019 and proposed NRC – Conspiracy culminated in the widespread communal violence which claimed 54 lives including senior police officer and Intelligence Bureau official, as well as grievous injuries to several police personnel and civilians and, extensive damage to over 1,500 public and private properties, along with substantial intangible harm to public order, social harmony and the nation at large – Appellants arrested in 2020 – Chargesheets filed disclosing the alleged roles attributed to each of the appellants and contours of the larger conspiracy purportedly orchestrated by them – Pendency of trial – Prosecution case prima facie attributed central role to Umar Khalid and Sharjeel Imam and alleged to be ideological drivers of the alleged conspiracy, their alleged acts situated at the planning and preparatory stage, extending over a prolonged period, alleged to have operated remotely away from the sites of violence, with no direct attribution of participation in acts of arson, assault, or destruction of property, thus, involved in facilitating execution – In contradistinction, remaining accused-Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan, Shadab Ahmad, Athar Khan, and others described as local-level facilitators, their alleged involvement site-specific and operational, even in the narrative concerning escalation into violence, role attributed to the remaining accused largely proximate and reactive, arising from developments at specific protest sites, thus involved in conceptualisation and supervision – Bail applications by the appellants – Rejected by the courts below – Challenge to, on the ground of prolonged incarceration, and constitutional plea u/Art.21: Held: Constitution does not conceive liberty in isolation – Security of the community, the integrity of the trial process, and the preservation of public order are equally legitimate constitutional concerns – When bail is sought in prosecutions governed by a special statute-s.43D(5), the Court is required to undertake a difficult and sensitive balancing exercise, conscious that neither liberty nor security admits of absolutism – Where the prosecution places prima facie material suggesting organised and deliberate activity affecting public order and security of the Nation, the Court cannot turn a Nelson’s eye to such material merely because incarceration is prolonged or liberty is invoked in the abstract – Equally, where continued detention is not shown to be necessary to serve a legitimate purpose recognised by law, the Court must not hesitate to restore liberty, subject to stringent conditions that safeguard the larger public interest – Constitutional role of the Court, thus, is neither to mechanically enforce the statutory embargo nor to neutralise it by invocation of liberty as straightjacket formula, but to apply it with disciplined scrutiny – Where the prosecution material, taken at face value, discloses reasonable grounds for believing the accusation to be prima facie true, the statutory restraint must ordinarily operate – Where it does not, liberty must prevail – Assessment of each appellant on the basis of the role attributed, the nature of material relied upon, and the stage of the proceedings, strictly within the limited compass of adjudication for grant of bail – Prosecution material, taken at face value, discloses a prima facie attribution of a central and formative role by the appellants-Umar Khalid and Sharjeel Imam in the alleged conspiracy – Material suggests involvement at the level of planning, mobilisation, and strategic direction, extending beyond episodic or localised acts – Statutory threshold u/s.43D(5) attracted qua these appellants – While the period of incarceration undergone by these appellants is substantial and, the Court not persuaded that, the continued detention has crossed the threshold of constitutional impermissibility so as to override the statutory embargo – Complexity of the prosecution, the nature of evidence relied upon, and the stage of the proceedings do not justify their enlargement on bail – On the completion of the examination of the protected witnesses or upon the expiry of a period of one year from the date of this order, whichever is earlier, the appellants at liberty to renew their prayer for grant of bail – This would give effect to the statutory discipline embodied in s.43D(5) of UAPA while ensuring that constitutional guarantee u/Art.21 operates as a continuing check against continued incarceration without there being any substantial progress of the trial – However, bail granted in respect of Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan and Shadab Ahmed having regard to the role attributed, acted as a local-level facilitator, the nature of the material relied upon, and the present stage of the proceedings, continued incarceration is not shown to be indispensable to the conduct of a fair trial, provided strict safeguards are imposed – Grant of bail in their favour does not reflect any dilution of the seriousness of the allegations, nor does it amount to a finding on guilt – It represents a calibrated exercise of constitutional discretion, structured to preserve both liberty of the individual and security of the nation – Appellants granted bail to be released subject to the conditions, imposed not as matters of form, but as substantive safeguards in the interest of national security, public order, and the integrity of the trial process – Penal Code, 1860 – ss.120B, 109, 114, 124A, 147, 148, 149, 153A, 186, 201, 212, 295, 302, 307, 341, 353, 395, 420, 427, 435, 436, 452, 454, 468, 471, 34 – Arms Act – ss.25, 27 – Prevention of Damage to Public Property Act, 1984 – ss.3, 4. [Paras 169-171, 173, 243, 244, 272, 273, 275, 280, 313-316, 319, 321, 352, 353, 359, 382, 383, 388, 390, 416, 418, 419, 424, 426-434]
Constitution of India – Art.21 – Unlawful Activities (Prevention) Act, 1967 – s.43D(5) – Prosecution under the UAPA – Invocation of delay and prolonged incarceration as grounds for bail – Principled approach by which a constitutional court to examine such plea – Delay simpliciter, if eclipses a statutory regime enacted by Parliament to address offences of a special category:
Held: In prosecutions alleging offences which implicate the sovereignty, integrity, or security of the State, delay does not operate as a trump card that automatically displaces statutory restraint – Rather, delay serves as a trigger for heightened judicial scrutiny – Outcome of such scrutiny must be determined by a proportional and contextual balancing of legally relevant considerations, including the gravity and statutory character of the offence alleged, the role attributed to the accused within the alleged design or conspiracy, the strength of the prima facie case as it emerges at the limited threshold contemplated under the special statute, and the extent to which continued incarceration, viewed cumulatively has become demonstrably disproportionate so as to offend the guarantee of personal liberty u/Art.21 – Thus, when the composite evaluation yields a clear conclusion that continued detention has crossed the bounds of constitutional permissibility that the Court may justifiably intervene notwithstanding statutory restrictions – To read Najeeb’s case as mandating bail solely on account of prolonged incarceration, irrespective of the statutory context or the nature of the allegations, would be to attribute to the decision a consequence it neither intended nor supports – Such a construction would also lead to an interpretive absurdity, whereby a special statute enacted by Parliament to address offences implicating the sovereignty, integrity, and security of the State would stand effectively neutralised by the mere passage of time, even at a pre-trial stage – Such an outcome cannot be countenanced in constitutional adjudication. [Paras 56, 57, 61] Unlawful Activities (Prevention) Act, 1967 – Statutory Scheme – Explanation:
Held: Unlawful Activities (Prevention) Act, 1967, is a special statute enacted to address forms of criminal conduct which, by their very nature, transcend ordinary breaches of penal law and implicate the sovereignty, integrity, and security of the State – Parliament, in framing the Act and in subsequently strengthening its provisions, has proceeded on the legislative understanding that such offences are rarely confined to isolated acts, but are more often the culmination of organised, sustained, and conspiratorial activity unfolding over time – Statutory scheme of the Act reflects this understanding – Chapters IV and VI do not confine criminal liability to the final execution of a terrorist act alone – They extend culpability to preparatory conduct, facilitation, abetment, and conspiracy, recognising that the threat sought to be addressed by the statute often materialises long before any overt act of violence is committed – Law thus proceeds on a process-based conception of criminality rather than an event-based one. [Paras 65, 66] Unlawful Activities (Prevention) Act, 1967 – s.43D(5) – Scope and content – Scope of judicial inquiry at the bail stage – Expression “prima facie true” – Meaning of :
Held: s.43D(5) constitutes a conscious departure from the general principles governing the grant of bail under the Code of Criminal Procedure – Provision embodies a deliberate legislative departure from ordinary bail jurisprudence, premised upon the distinctive nature of offences under Chapters IV and VI of the Act – Expression “prima facie true” mandates a threshold judicial inquiry which is neither perfunctory nor adjudicatory, requiring the Court to examine whether the prosecution material, taken at face value, discloses the essential statutory ingredients of the alleged offence – Inquiry is necessarily accused specific, directed to the role and attribution qua the individual, and does not admit of collective or undifferentiated treatment merely because allegations arise from a common transaction or conspiracy – Bail stage u/s.43D(5) is not a forum for evaluating defences, weighing evidence, or conducting a minitrial; judicial restraint at this stage is not an abdication of duty but a fulfilment of the statutory mandate – These propositions, read together, define the contours of judicial power and responsibility under the provision – s.43D(5) thus, demands judicial restraint, not judicial abstention, at the pre-trial stage – Cumulative effect of the statutory scheme is that s.43D(5) operates as a gatekeeping provision – It requires the Court to undertake a focused, accusedspecific, and legally disciplined inquiry, confined to determining whether the prosecution material, taken at its highest, satisfies the statutory threshold of prima facie truth. [Paras 67-80] Unlawful Activities (Prevention) Act, 1967 – s.43D(5) – Application of – Structured inquiry to be held by courts: Held: Correct application of s.43D(5), requires the Court to undertake a structured inquiry as regards whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged; whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full-fledged trial – Where the requirements are met, statutory restraint on the grant of bail must operate with full force; where they are not, the embargo stands lifted – This approach preserves the legislative purpose of the Act, and ensures that the exceptional nature of the bail regime u/s.43D(5) is neither diluted by overreach nor distorted by mechanical application. [Paras 81, 82] Unlawful Activities (Prevention) Act, 1967 – s.15 – Scope of “Terrorist Act” under and the statutory context: Held: s.15 defines what constitutes a “terrorist act” for the purposes of the statute – Definition is structured around two essential elements, first, the act must be done with intent to threaten, or be likely to threaten, the unity, integrity, security, including economic security, or sovereignty of India, or with intent to strike terror in the people or any section thereof, and second, the act must be of such a nature as to cause, or be likely to cause, the consequences enumerated in the provision – Means by which such acts may be committed are not confined to the use of bombs, explosives, firearms, or other conventional weapons alone – Parliament has consciously employed the expression “by any other means of whatever nature”, which expression cannot be rendered otiose – Statutory emphasis is thus not solely on the instrumentality employed, but on the design, intent, and effect of the act – To construe s.15 as limited only to conventional modes of violence would be to unduly narrow the provision, contrary to its plain language – Consequences contemplated u/s. 15 further illuminate the legislative understanding of terrorism – Apart from death or destruction of property, the provision expressly encompasses acts which disrupt supplies or services essential to the life of the community, as well as acts which threaten the economic security of the nation – This reflects Parliament’s recognition that threats to sovereignty and security may arise through conduct that destabilises civic life or societal functioning, even in the absence of immediate physical violence. [Paras 86-88]
Constitution of India – Art.21 – 2020 Delhi riots case – Right to life and personal liberty vis-a-vis security of the society: Held: Constitution guarantees personal liberty, but it does not conceive liberty as an isolated or absolute entitlement, detached from the security of the society in which it operates – Sovereignty, integrity, and security of the nation, as well as the preservation of public order, are not abstract concerns rather they are constitutional values which Parliament is entitled to protect through law – Where a special statutory framework has been enacted to address offences perceived to strike at these foundations, courts are duty-bound to give effect to that framework, subject always to constitutional discipline – In the application of such law, the Court does not proceed on identity, ideology, belief, or association – It proceeds on role, material, and the statutory threshold governing the exercise of jurisdiction – Criminal law does not mandate identical outcomes merely because allegations arise from the same transaction – Those alleged to have conceived, directed, or steered unlawful activity or terrorist activity stand on a different legal footing from those whose alleged involvement is confined to facilitation or participation at a different level – To disregard such distinctions would itself result in arbitrariness – Decision of 2020 Delhi riots case reflects this constitutional method – It neither endorses the prosecution case nor prejudges the guilt of any accused – It applies the law as it stands, recognising that individual liberty must be protected, but that it must also withstand the legitimate demands of national security and collective safety – This balance is not a matter of preference rather it is a matter of constitutional duty. [Paras 436-438]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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