New Delhi: Justifying its controversial decision to deny bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots “larger conspiracy” case, the Supreme Court today sought refuge in what it said was the need to balance personal liberty and the right to a speedy trial on the one hand, with the requirements of collective national security on the other. Proceeding on this basis, the court adopted what it claimed was a layered approach to bail, calibrating relief to the perceived role of each of the seven accused who had approached it.“The security of the community, the integrity of the trial process, and the preservation of public order are equally legitimate constitutional concerns. When bail is sought in prosecutions governed by a special statute, the Court is required to undertake a difficult and sensitive balancing exercise, conscious that neither liberty nor security admits of absolutism,” the bench stated in its 142-page-long order.Also read: Supreme Court Rejects Bail for Umar Khalid, Sharjeel Imam, Grants Gulfisha and Four Others BailThe Supreme Court said it looked at each individual in isolation and judged their alleged roles in the 2020 Delhi riots case. The bench, comprising Justices Aravind Kumar and N.V. Anjaria, ruled that all accused do not stand on equal footing as their alleged roles in the ‘conspiracy’ are varied. Bail was granted to Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Saleem Khan and Shadab Ahmed – the “local level facilitators” – while it was denied to Sharjeel Imam and Umar Khalid – the “architects”. The top court further observed that while prolonged incarceration is a grave constitutional concern, it cannot mechanically override concerns in cases of national security.“The continued detention of those alleged to be the architects of the conspiracy may be required to safeguard broader security interests and deter future acts, whereas the rationale for continued incarceration of minor participants is comparatively attenuated once the investigative purpose is exhausted. The Court is therefore justified in calibrating its approach, ensuring that the pursuit of security does not eclipse the principle of proportionality,” the order read.In doing so, however, as Gautam Bhatia has noted, the bench has ignored the Supreme Court’s own settled jurisprudence.Architects of the crimeThe bench prima facie distinguished student activists Sharjeel Imam and Umar Khalid for their “strategic centrality” and leadership roles in the alleged conspiracy in the 2020 Delhi riots case. This is based on police claims that Imam and Khalid were involved in the “planning, mobilisation, and strategic direction, extending beyond episodic or localised acts”.While Imam was “one of the principal ideologues” and “early architects” of the conspiracy, Khalid played a “central role” in “conceptualising and directing mass mobilisation… [and] escalating protests into disruptive chakka jams and, thereafter, into violence”, the court said.Thus, Imam and Khalid stand on a “qualitatively different footing from the remaining accused, both in the prosecution narrative and in the evidentiary basis relied upon,” the order read.Also read: In Defence of Umar Khalid and Other ‘Intellectual Architects’The Supreme Court also noted that though the duo have undergone a substantial period of incarceration, it was not convinced that their “continued detention has crossed the threshold of constitutional impermissibility so as to override the statutory embargo”.Gautam Bhatia notes:“In fact, the Supreme Court’s order here is contrary to its own prior bail jurisprudence under the UAPA: in Sheikh Javed Iqbal vs State of Uttar Pradesh, the Court specifically noted that, in fact, the more serious the offence, the greater the imperative that the trial be concluded expeditiously, and that the seriousness of the offence cannot be invoked in order to make trial delays constitutionally acceptable. Today’s judgment makes no mention of Javed Iqbal, and advances a proposition directly contrary to it. This is not something that co-ordinate benches of the Court can do.”The court, however, allowed Imam and Khalid to re-apply for bail after the trial court completed its examination of the protected witnesses or after one year, whichever is earlier.The minor playersIn granting bail to Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Saleem Khan, and Shadab Ahmed, the top court distinguished their roles as “minor players” and “local facilitators” whose involvement could be site-specific or operational.The court found that these five individuals did not have “autonomous decision-making capabilities” or “command responsibility” in the overarching “conspiracy”.“To conflate operational responsibility with command responsibility at the bail stage would risk imposing a regime of undifferentiated incarceration,” the court said.The top court added that granting them bail did not “reflect any dilution of the seriousness of the allegations”, nor did it “amount to a finding on guilt”.“It represents a calibrated exercise of constitutional discretion, structured to preserve both liberty of the individual and security of the nation,” it stressed.Bail conditionsThe Supreme Court imposed 12 conditions while granting bail to the five accused. These included: Rs 2 lakh surety each (with two local sureties of like amount); surrender passports (if any); cannot leave Delhi without prior permission during pendency of trial; co-operate during the trial, avoid any delays and appear at every date unless otherwise exempted; twice a week attendance at Delhi’s Crime Branch police station; “maintain peace” and “good behaviour”; complete contact details and address which cannot be changed without informing the court seven days in advance; no contact/intimidation of witnesses; no posting anything related to this case on social media or through any offline means; cannot participate in debates, give interviews or participate in rallies.On delayThe Supreme Court said that the plea of delay could not be examined in abstraction even as it acknowledged that complexity of the case and not judicial inaction, the prosecution or the accused was the reason for the delay.“The law has taken its course, albeit at a pace dictated by the complexity of the case, the number of accused, and the nature of issues raised,” it said. “The constitutional concern arising from prolonged custody is therefore acknowledged, but it does not, on the present record, translate into a finding that continued detention has become punitive or unconscionable solely by reason of delay,” the bench added.Delay is trial proceedings must be looked at contextually, the court said. “Context includes the nature of the allegation, the statutory field, the stage of the proceedings, the realistic trajectory of the trial, the causes contributing to delay, and the risks attendant upon release. Delay cannot be detached from these considerations and treated as a solitary determinant.” It noted that while prolonged incarceration is a “serious constitutional concern,” delay in trial proceedings alone is not an “automatic ground” for bail if the ingredients of the crime are met and delay is not solely attributable to the state. The top court further highlighted that Article 21 did not operate in isolation from the law. “The constitutional promise is not that liberty will be unregulated, but that deprivations of liberty will not be arbitrary, unconscionable, or unfair,” it stated.The court also said that the Unlawful Activities (Prevention) Act was a special law that was enacted to address issues pertaining to the safety and security of the State. This safety, the court said, went beyond the conventional forms of terrorism and included anything that destabilised peace and security of a nation.There is a further constitutional aspect that warrants articulation. Article 21 protects individual liberty. It also, within the same guarantee of life, reflects the State’s obligation to protect the life and security of the community. As a result, in prosecutions alleging threats to public order and national security, the court is obligated to be mindful that both dimensions are engaged. The constitutional order is not served by an approach that treats liberty as the sole value and societal security as peripheral. Both must be accommodated through reasoned adjudication, the bench noted.