Shadows of Judicial Indiscipline: On the Supreme Court’s bail denial to Umar Khalid and Sharjeel Imam

AT THE HEART of the controversy relating to the denial of bail to Sharjeel Imam and Umar Khalid is a simple question: what is the crime that they have committed? What if they have committed no crime at all under the Unlawful Activities (Prevention) Act, 1967? Would bail still have been denied to them?

By far the most dangerous aspect of the judgment delivered by Justices Aravind Kumar and N.V. Anjaria is the Court’s interpretation of Section 15 of the UAPA, which defines a “terrorist act”. To understand why, one must begin with the definition of ‘terrorism’. 

There is, to date, neither international nor national consensus on what constitutes terrorism. The crime of terrorism was introduced following what the United States described as the ‘war against terror’ following the 9/11 attacks. Yet, today, we do not have a definition of what constitutes terrorism. We, therefore, have to look at Section 15 of the UAPA.

Section 15 merely states, “Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security , economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,” and does so through specified terror-linked means such as bombs, explosives, firearms or other hazardous substances, or by methods likely to cause death, destruction, or disruption of essential services. The statutory design, thus, ties terrorism to both a terror-centric intent and the use of exceptional, terror-producing means, not to ordinary criminal violence.

In recent years, two of the most high profile cases where the accused have been charged under the offence of UAPA have been the Bhima Koregaon case and the Delhi riots case. In both of these cases, no overt act of violence was attributed to any of the accused who were incarcerated for five years and above.

Surendra Gadling, one of the accused in Bhima Koregaon, has been in prison for seven years without bail. Others in the case got bail after five years of waiting without trial. In both cases, none of the accused were attributed to have used bombs, dynamites, explosives or firearms intended to cause death or injuries to persons or damage to property. From a simple reading of Section 15, it is clear that none of the accused in these two cases would qualify for being charged under the UAPA. In both cases, the primary evidence was electronic evidence, which in the Bhima Koregaon case, was established to have been remotely planted in order to frame the accused as ‘urban naxals’. No link was established regarding any statements made by any of them and the violence which occurred more than 24 hours after the meeting at the Elgar Parishad on December 30, 2017.