Introduction:

On November 11, 2024, the Supreme Court of India declined to entertain a writ petition under Article 32 of the Constitution filed by Gulfisha Fatima, who sought bail in connection with charges under the Unlawful Activities (Prevention) Act (UAPA) related to the alleged conspiracy behind the 2020 Delhi riots. Goldfish, a student activist, has been in judicial custody since April 2020 and has argued that her continued detention and the repeated delays in her bail hearings amount to a violation of her right to a speedy trial. Represented by Senior Advocate Kapil Sibal, Gulfisha contended that her prolonged incarceration—now extending to over four years—without progress in trial proceedings has severely impacted her constitutional rights. In response, the Supreme Court, although declining to directly grant bail, requested the Delhi High Court to prioritize her pending bail application on the scheduled hearing date, November 25, barring any extraordinary circumstances. This ruling follows a similar writ petition filed by co-accused Sharjeel Imam, which the Supreme Court also disposed of with similar directions to the Delhi High Court.

The Supreme Court bench of Justices Bela M. Trivedi and Satish Chandra Sharma presided over the hearing. Justice Trivedi highlighted the recent precedent set in Imam’s case, where the Supreme Court refrained from intervening in the bail proceedings directly and instead urged the High Court to consider the bail application at the earliest. Gulfisha’s defence, however, sought to differentiate her case by pointing to the extensive delay and repeated adjournments faced in her hearings, with the trial process still at a standstill.

This case is emblematic of the ongoing legal struggles faced by activists implicated under the UAPA for their alleged roles in organizing protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC). The core of the legal dispute lies in the challenge of balancing the stringent provisions of the UAPA with constitutional rights to bail and a fair, speedy trial.

Arguments Presented by Both Sides:

Petitioner’s (Defense) Arguments:

1. Delay and Prolonged Incarceration: Kapil Sibal, representing Gulfisha, emphasized that his client has already spent over four years and seven months in custody. He argued that this duration, paired with the recurring adjournments in bail hearings, has effectively violated Gulfisha’s fundamental right to a speedy trial. Sibal detailed how the bail hearings were repeatedly adjourned due to the absence of the presiding officer or other procedural reasons, resulting in significant delays and long periods of inactivity on the case. According to Sibal, the lack of progress in her bail hearings undermines the principles of justice and fair trial guaranteed under the Indian Constitution.
2. Comparison with Previous Supreme Court Judgment in K.A. Najeeb: Sibal referenced the Supreme Court’s ruling in the K.A. Najeeb case, which held that prolonged pre-trial incarceration could justify the grant of bail even under stringent statutes like the UAPA. He argued that despite Section 43D(5) of UAPA imposing a high threshold for bail, courts are still bound by the Constitution to grant relief when a speedy trial is unachievable. Sibal underscored that Gulfisha’s case represents exactly the kind of undue delay contemplated in Najeeb, where the delay in proceedings may result in the provision of bail to prevent prolonged incarceration.
3. Inapplicability of Article 32 Bar in Prolonged Detention Cases: In response to the bench’s reluctance to invoke Article 32, Sibal contended that seeking relief under Article 32 is not barred in cases of extreme delay and infringement of personal liberty. He argued that the extraordinary circumstances of Gulfisha’s case—wherein the bail hearings have repeatedly stalled and the trial has shown no substantial progress—justify her appeal to the Supreme Court for intervention.
4. Special Consideration for Female Inmates: Sibal also argued that Gulfisha’s situation demands special attention as she is a 31-year-old woman who has spent a substantial period in judicial custody without conviction. He noted that prolonged detention without trial is particularly taxing on women inmates, whose welfare considerations, he argued, the court should factor into its deliberations.

Respondent’s (Prosecution) Arguments:

1. Pending High Court Proceedings: The prosecution contended that Gulfisha’s bail application is already scheduled for hearing before the Delhi High Court on November 25. The prosecution argued that the Supreme Court’s intervention was premature and that the High Court should be allowed to address Gulfisha’s bail application within the procedural framework of the UAPA and CrPC.
2. Importance of Adhering to Procedural Sequence: The prosecution argued that bypassing the High Court and directly seeking relief from the Supreme Court under Article 32 may disrupt the procedural sequence established for bail applications under UAPA cases. They cited the procedure as essential to ensuring a balanced and thorough evaluation of bail pleas, especially in cases where severe charges related to national security and public order, such as those under UAPA, are involved.
3. Risk of Setting Precedents in UAPA Cases: The prosecution argued that granting direct bail under Article 32 could set a precedent that might encourage accused individuals in similar cases to seek direct relief from the Supreme Court, thereby bypassing the standard judicial procedure. They contended that strict adherence to the procedural sequence is vital in UAPA cases to uphold legislative intent and ensure due scrutiny of serious charges.

Court’s Judgment:

The bench, consisting of Justices Bela M. Trivedi and Satish Chandra Sharma, carefully weighed the arguments before delivering its order. Justice Trivedi clarified that, while Article 32 provides a constitutional remedy for cases of infringement of fundamental rights, bail matters typically follow a prescribed process that first involves lower courts unless exceptional circumstances are present. The bench held that, despite the lengthy detention period, Gulfisha’s bail plea should be heard by the Delhi High Court, which had already scheduled a hearing for November 25.

Justice Trivedi observed that similar petitions, such as the one filed by Sharjeel Imam, had been disposed of without Supreme Court intervention in bail matters, with the High Court being urged to expedite its hearing. Justice Sharma noted that in Imam’s case, the Supreme Court had avoided direct interference, instead prioritizing the High Court’s role in deciding bail applications under the UAPA framework.

However, in recognition of the prolonged detention and procedural delays cited by the defence, the Supreme Court issued a request to the Delhi High Court, urging it to take up Gulfisha’s bail application on the designated date, November 25, unless extraordinary circumstances prevent it. The bench’s order stated: “We are not inclined to entertain the writ petition under Article 32 of the Constitution. It is stated that the next date fixed before the High Court is 25th November. Since the petitioner is under custody for 4 years and 7 months, it is requested that the bail application may be heard on the date fixed unless there are extraordinary circumstances.”

• Legal and Social Implications:

The Court’s judgment reflects a cautious approach to balancing legal procedure with constitutional rights, particularly under the UAPA, which carries stringent bail restrictions under Section 43D(5). This statute mandates that bail can be denied if the prosecution can show “reasonable grounds” for the accusations against the accused. However, Gulfisha’s defence cited precedent cases where constitutional courts have overridden such statutory barriers to bail when prolonged detention constitutes a violation of the right to a speedy trial, as guaranteed by Article 21.

The case has also highlighted the challenges faced by activists arrested during the 2020 anti-CAA protests. The UAPA provisions applied in these cases have raised concerns about the lengthy pre-trial detentions, potentially infringing upon the rights to free speech, association, and fair trial. Several activists, including students and members of civil society groups, face serious charges related to the 2020 riots in North East Delhi. These cases have been widely debated, with courts considering the line between public protests and alleged conspiracies, testing the boundaries of statutory provisions under UAPA against constitutional guarantees.

• Background Context of the 2020 Delhi Riots Case:

The bail pleas of several activists charged under UAPA for their alleged roles in the 2020 Delhi riots have become central to debates over procedural justice and the rights of accused individuals. The charges against Gulfisha and others include Sections 13, 16, 17, and 18 of the UAPA, related to unlawful activities, terrorism, and funding of terrorism, among others. The Delhi Police have alleged that these activists were involved in a “larger conspiracy” to incite violence during protests against the CAA and NRC. A Delhi Court in March 2022 had denied Gulfisha bail, finding “reasonable grounds” to believe the allegations were prima facie true.