Process as Punishment: Justice Delayed, Justice Denied - Open Appeal by NAJAR

Aug 15, 2024

By NAJAR: National Alliance for Justice, Accountability & Rights

Open Appeal by 100+ Lawyers & Other Law Professionals from across India to the Judiciary: Uphold Right to Bail, Speedy Disposals & Liberty

Process as Punishment: Justice Delayed, Justice Denied

Judicial delays and Multiple Re-hearings of bail applications of ‘equal citizenship’ activists violate fundamental rights to liberty and speedy justice

15^th August, 2024: As we mark our 78^th Independence Day, NAJAR expresses deep concern about the inordinate judicial delays in the bail applications of those accused in FIR 59/20 (Delhi Police Special Cell), where multiple students, activists and local Muslim residents from North-East Delhi have been charged under the draconian Unlawful Activities (Prevention) Act (UAPA). They have been accused of ‘hatching a conspiracy’ to plan and orchestrate the targeted communal violence that took place in February 2020 in Delhi. Of the 18 people arrested in the case, only six are reported to have received bail so far. The others are facing multiple concerns – either their judgments are being reserved but not passed, or, judges are being transferred after the hearing, or are recusing themselves. This has led to undue and unjust delays in the process of hearing and disposal of bail applications.

Table showing number of bail pleas listed and changes in bench

(Source – livelaw.in & Case Status from Delhi High Court website)

Name of the Accused	Bail listed for first time	Number of times listed	No. of times bench changed	Judgment reserved or not
Sharjeel Imam	29^th April, 2022	73	6	No
Meeran Haider	20^th May, 2022	76	8	Yes (On 6^th March, 2023) by Justice Mridul’s Bench
Gulfisha Fatima	11^th May, 2022	73	4	Yes (On 13^thFebruary, 2023 by Justice Mridul’s Bench)
Abdul Khalid Saifi @ Khalid Saifi	10^th May, 2022	64	5	Yes (On 12^thDecember, 2022 and again on 5^th January, 2023 by Justice Mridul’s Bench)
Mohd Saleem Khan	23^rd May, 2022	72	6	Yes (On 6^th March, 2023) by Justice Mridul’s Bench
Shifa ur Rehman	3^rd June, 2023	72	5	Yes (On 6^th March, 2023) by Justice Mridul’s Bench)
Shadab Ahmed	29^th Nov, 2022	57	4	No
Athar Khan	23^rd December, 2023	50	4	No

Additionally Umar Khalid, Salim Malik @ Munna, Tasleem Ahmed & Tahir Hussain continue to languish in prison. It has been 4 years or more since their arrests despite which the trial has not even begun in the case. And yet, the bail applications of most of the accused in the case have been pending in the Delhi High Court without any verdict for more than two years now.

Key concerns that have been revealed during pending bail applications:

(i) Non-application of precedence: Most of those arrested in the case, first applied for bail in the trial court during the second half of 2021, after the Delhi High Court granted bail to Asif Iqbal Tanha, Natasha Narwal & Devangana Kalita in its 3 historic judgments dated 15th June 2021. The judges unequivocally recorded “We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril“.

The Bench led by Justices Siddharth Mridul and Anup Jairam Bhambhani (judgment authored by Justice Bhambhani), undertook a detailed analysis of what constitutes terror under the UAPA (Unlawful Activities Prevention Act, 1967), the right to protest and the provisions and principles of bail. It found on a reading of the charge-sheet, that prima facie, the allegations made were not even borne out from the material on which they were based. That shorn of the “superfluous verbiage, hyperbole and the stretched inferences by the prosecuting agency”, i.e. the Delhi Police, the factual allegations made against the accused did not prima facie disclose the commission of any offence under sections 15, 17 & 18 of the UAPA.

Unfortunately, the Supreme Court (Bench of Justices Hemant Gupta & V Ramasubramanian) three days later on 18th June 2021, is reported to have said that it found it troubling that a bail judgment had discussed the entire terror law. It, therefore, passed an interim order directing that the detailed High Court Judgments granting bail shall not be used as precedent and may not be relied by upon any of the parties! While the Supreme Court did not interfere with the release of Asif, Natasha and Devangana at that stage, this judgment would later come in the way of helping the remaining accused.

At the stage of passing the final order two years later on 2.5.2023, the Supreme Court, now a Bench of Justices Sanjay Kishan Kaul and Ahsanuddin Amanullah, gave a strange explanation to the above, saying that the idea was to protect the State against use of the judgment for enunciation of the law qua interpretations of the UAPA in a bail matter! When one of the co-accused expressed concern that the observations in the interim direction were coming in the way of seeking bail, the Bench said that “If the co-accused is entitled to a plea on parity, that is for him to make and the Court to consider”. Gulfisha, Khalid Saifi, Athar, Meeran & Shadab filed applications before the Delhi High Court for the Supreme Court’s order to be taken on record in their bail applications, in order to seek bail on the ground of parity. However, the bench either did not assemble, or adjourned all listed hearings during the next four months until 19th Oct’23 when Justice Mridul was transferred to the Manipur High Court.

(ii) Adjournments, recusal, change of benches: The High Court Bench of Justices Siddharth Mridul and Rajnish Bhatnagar began the bail hearings in Umar Khalid’s petition which was heard over multiple hearings for almost 4 months. On 18th October’23, it rejected Umar Khalid’s bail. Yet, the Delhi High Court, with Justice Siddharth Mridul as the senior judge in the bench, had passed the earlier detailed bail order, castigating the police for a shoddy investigation, the unwarranted use of UAPA and drawing a sharp distinction between dissent & terror.

This Judgment on the other hand (authored by Justice Rajnish Bhatnagar), relied upon the highly criticised ‘Watali’ judgment passed by the Supreme Court (authored by Justices A.M. Khanwilkar and Ajay Rastogi) which held that the material collated by the investigating agency in reference to accusations against the accused must prevail until contradicted, overcome or disproved, and on the face of it, shows the complicity of the accused. The Judgment went on to observe that there was a “pre-meditated conspiracy” for causing inter alia “pre-meditated protests”, and “the protest planned was not a typical protest, normal in political culture or democracy, but one far more destructive and injurious geared towards extremely grave consequences.” This was despite several discrepancies having been pointed out by Umar’s counsel. This complete volte face by the Delhi High Court, in one year remains unanswered.

Umar subsequently applied for bail in the Supreme Court, where his bail was left pending for more than a year with numerous adjournments, recusal of judges and change of benches. Finally, he withdrew his application and re-started the bail application process from the trial court. The trial court once again rejected his bail and now he is once again before the High Court, where notice has been issued to the police and the matter has been listed for hearing on 29th August’ 24.

(iii) Orders reserved: The bail applications of virtually all the other accused have remained pending in the Delhi High Court (barring Salim Malik whose application was dismissed recently). After rejecting Umar’s bail, the bench of Justices Siddharth Mridul and Rajnish Bhatnagar heard other bail applications for almost a year but merely reserved orders / judgments without passing them. Sharjeel Imam’s application remained to be heard.

(iv) Transfer of judge: Justice Mridul was subsequently transferred and all the bail pleas were required to be RE-HEARD by a new bench.

(v) Transfer because of appointment as Chief Justice of J&K: On 1st Nov’23, the bail pleas were listed before the special bench of Justices Suresh Kait and Manoj Jain, which only began hearing the pleas from Jan’24. This new bench concluded hearings on most of the bail pleas — Gulfisha, Khalid Saifi, Salim Malik @ Munna, Shifa & Meeran. Extensive arguments on Sharjeel’s bail plea took place, but remained to be concluded. The bench pronounced an order and rejected the bail plea of Salim Malik on 22nd April’24. Once again the Watali judgment was relied upon. On 11th July’24, the Supreme Court collegium recommended the appointment of Justice Suresh Kait as the Chief Justice of the High Court of Jammu & Kashmir. In light of the imminent transfer, the current bench has transferred all the remaining bail matters to a new bench without pronouncing a verdict even in the bail applications it had finished hearing. This means that these bail applications will have to be heard for a third time in the Delhi High Court.

(vi) Recusal: The matters were listed before the Bench of Justices Pratibha M Singh & Amit Sharma, but the latter recused himself from hearing the pleas. The new bench will only be known by the next date of hearing which is 29th August’24.

Multiple judgements of the Supreme Court emphasize the need and importance of bail matters to be decided expeditiously. In Satender Antil v. CBI, (2022) 10 SCC 51, the Supreme Court had directed that bail applications ought to preferably be disposed of within a period of two weeks. For most of the accused in FIR 59/20 (UAPA charges), it has been more than two years and waiting since they applied in the Delhi High Court for bail. It has been more than 4 years since they were arbitrarily arrested and their trial is yet to begin.

NAJAR condemns this absolute travesty of justice and expresses deep concern over these inordinate, prolonged judicial delays and multiple re-hearings of bail applications. In some cases, Judges have recused themselves from hearing the matters and in others, judges were transferred and have left without pronouncing a verdict. The numerous adjournments numbering up to 60-70 in most cases, raises serious questions about the accountability of the judiciary. We are of the concerted view that ‘Process has become Punishment’ for all these law-abiding activists and that these delays tantamount to infringement of their fundamental rights to liberty and speedy disposals.

Tragically, a sense of time has collapsed for those incarcerated inside, as they wait interminably for a verdict on their bail applications. Precious years of their lives continue to be brutally snatched away from them and their families, with their dear ones suffering equally, from the ensuing stress and uncertainty.

All this for the ‘crime’ of participating in peaceful protests for equal citizenship against the CAA-NPR-NRC, a vibrant movement which was a great beacon of hope in the struggle for democracy, secularism and constitutional values in our country. We hope and expect that the Supreme Court and Delhi High Court take immediate cognizance of the pattern of injustice that has been meted out through these ‘hearings’ or ‘non-hearings’ and unbelievable ‘delays’. We hope that these courts ensure that the rights to bail and liberty of all activists are upheld, for these are valuable constitutional rights and freedoms.

We earnestly appeal to the Supreme Court and the Delhi High Court to:

Ensure that the bail petitions of all the accused in the equal citizenship cases (FIR 59/2020) are heard and decided in an expeditious manner, within two weeks at the most.

Direct immediate payment of appropriate compensation to the accused and their families, for the inordinate delays in these bail matters.

Institute a fair judicial system, so that in the event of transfer / elevation, judges are required to pass orders in bail matters, where hearing has been concluded or judgement has been reserved.

Today, hope shines a little brighter as the Supreme Court (Bench of Justices Abhay Oka & Augustine George Masih), has clarified that ‘bail is the rule, jail is the exception’, even in special statutes like the UAPA. We at NAJAR, hope that all those in FIR 59/20 and many others like them, can savour their liberty once more with the immediate delivery of justice. Ensuring their liberty would be a true homage to all our freedom fighters and makers of the Indian Constitution.

Issued by NAJAR: National Alliance for Justice, Accountability & Rights