The Supreme Court is ‘consistently inconsistent,’ getting justice is a matter of toss of coin, says Senior Advocate Dushyant Dave
NEW DELHI — Adding to the growing resentment in the judicial fraternity and civil society against the denial of bail to student activists and researchers at JNU, Umar Khalid and Sharjeel Imam, former Supreme Court judges, Justices Madan B Lokur and Sudhanshu Dhulia, have termed the verdict ‘disappointing’ and ‘sad’.
The Supreme Court last week denied bail to the student activists who have been languishing in prison for over five years without trial for their alleged role in the larger conspiracy behind the 2020 Delhi riots.
Participating in a talk show hosted by Senior Advocate Kapil Sibal, who represented Umar Khalid in the Supreme Court, Justice Lokur said he was “sad” at the bail denial. In the same programme, where Senior Advocate Dushyant Dave was also present, Justice Dhulia said that the apex court’s decision was “disappointing”.
Justice Lokur said that the judgment was particularly erroneous in not considering the aspect of delay in trial and the long incarceration of the appellants. Although Khalid and Imam were arrested in 2020, they were given the prosecution materials, as per Section 207 of the Code of Criminal Procedure, only in 2023, after three years.
“I’m not at all happy with the judgment. On the question of delay, the judgment is completely wrong,” Justice Lokur was quoted by Livelaw.in as saying. He wondered how the appellants could be held responsible for the three-year delay in handing over the materials. He highlighted that records showed Khalid and Imam were always ready for arguments on charges.
Earlier, former Union Minister for Law and Justice Ashwani Kumar said “the libertarians in this country today would be unhappy. The Constitution’s conscience is libertarian, and ‘bail is the rule and jail is an exception’ is a well-established principle of criminal jurisprudence. Ashwani Kumar added that prolonged incarceration without conviction raises serious constitutional concerns.
“On a general basis, such long incarceration without conviction does not comport with the conscience of the Constitution,” he said.
In the Sibal talk show, Justice Lokur also questioned the basis of invoking the terrorism offence under Section 15 of the Unlawful Activities Prevention Act against the accused. “What did they do? Attended some meetings, created WhatsApp groups, gave speeches, and circulated pamphlets. How is this terrorist activity?” Justice Lokur asked.
Supplementing Justice Lokur’s views, Justice Dhulia said that the judgment was “disappointing for me as a citizen of this country.” He said that the judgment had misinterpreted the judgment in Union of India vs. KA Najeeb rendered by a three-judge bench. Justice Dhulia said that Najeeb held that long incarceration and the unlikelihood of early completion of trial are grounds to grant bail despite the rigours of Section 43D (5) of the UAPA.
However, the judgment in the Umar Khalid case has only considered the aspect of long incarceration, and there was no discussion on the likelihood of completion of the trial. He said that in the Najeeb case, there were 200 witnesses to be examined, whereas in this case, 900 witnesses are to be examined, and hence, the completion of trial in the near future was totally impossible.
Sibal, according to the Livelaw.in report, added that the chargesheet ran into 3000 pages, and documents were over 30,000 pages.
Justice Dhulia also questioned the basis of the Supreme Court imposing a one-year embargo on Imam and Khalid in applying for fresh bail. “Where did this come from?” he asked.
Dushyant Dave opined that the “judges had made up their minds first and then they tried to fish for reasons.”
He criticised the judgment for ignoring the binding precedent in Najeeb. Dave added that on the same day of pronouncement of the verdict in the Umar Khalid case, the same bench had pronounced the verdict in the Adani Power case, where it criticised the Gujarat High Court for ignoring a precedent and emphasised the importance of the stare decisis principle.
“The Supreme Court is consistently inconsistent. Getting justice is a matter of toss of coin. It depends on which bench your matter is listed. These boys should not have been even arrested in the first place. I don’t understand how can there be even a prima facie case against them. They have not used any bombs, explosives, they have not caused violence, or deaths. So, what is this case about?” Dave wondered.
Sibal said that there are 750 FIRs filed in respect of actual violence in the Delhi riots, and in none of them, Umar Khalid and Sharjeel Imam are named as the accused. He added that there are so far 97 acquittals and 16 convictions in the riots cases, and while acquitting the accused, the trial courts have lambasted the Delhi police for “cooking up case diaries, fabricating evidence.” Sibal said that the case is only an instance of the “Government wanting to teach them a lesson.” Agreeing, Justice Lokur said, “It appears to be so.”
