Of bail pleas and how courts learn to do better |
In January this year, the Supreme Court refused bail to Umar Khalid and Sharjeel Imam. In May, it granted bail to Syed Iftikhar Andrabi. Both men are charged under the Unlawful Activities (Prevention) Act. Both have spent more than five years in jail awaiting trial. The same statute applies to them. Two different benches, sitting four months apart, read it in two very different ways. The story of those four months is worth telling. It is the story of how the Supreme court, talking to itself, is slowly correcting its own drift.
The statute at the centre of all this is Section 43-D(5) of the UAPA. It tells a judge that bail must not be granted if, on the face of the police case, the court has reasonable grounds to believe the accusation is true. Read literally, it is a tall order. The judge is asked to assume that the police story is correct, and then to refuse liberty on that assumption.
For some years the law moved between two poles. In 2019, in Zahoor Ahmad Shah Watali, the court took a strict view. A High Court order that had granted bail by sifting evidence too closely was reversed. In 2021, in K.A. Najeeb, three judges took a different view. They held that where trial was nowhere in sight and a man had already served much of his possible sentence, the rigours of Section 43-D(5) would, in the court’s striking phrase, “melt down” before Article 21. The principle was sensible. Liberty is the rule. Detention without trial cannot become a sentence by stealth. A statute is subordinate to the Constitution.
Then came the slow unwinding. Two-judge benches began........