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Why Kapil Sibal withdrew Umar Khalid’s bail plea from SC: Failed attempt at forum shopping and a recent SC judgement about bail in UAPA cases

From the timeline, it is evident that after the exit of Justice Aniruddha Bose, Umar Khalid and his lawyers - Kapil Sibal to be precise - demanded adjournments ad neuseum till the petitions were withdrawn. Further, it is evident that Prashant Bhushan also attempted to ensure that the case was listed before the CJI, a proposal struck down by Justice Bela Trivedi. This poses an important question of whether Kapil Sibal was "trying his luck" at forum shopping and having failed at that, withdrew his petition from the Supreme Court.

Islamist Umar Khalid withdrew his bail plea before the Supreme Court in the Delhi anti-Hindu riots in February 2020 on Wednesday. A bench of Justices Bela M Trivedi and Pankaj Mithal allowed him to withdraw the bail plea. Senior advocate Kapil Sibal, appearing for Khalid, told the bench that the petition is being withdrawn given a “change in circumstances” and to seek bail afresh before the trial court. Sibal said, “Bail matter, we wish to withdraw. There has been a change in circumstances, we will try our luck in the trial court.”

Khalid has been in custody in a UAPA case in the anti-Hindu Delhi riots in February 2020. Khalid had approached the top court challenging an October 2022 Delhi High Court verdict that had denied bail to him.

As soon as Kapil Sibal withdrew the bail petition, speculations were rife about what the “changed circumstances” were owing to which, the bail petition was withdrawn. Interestingly, speaking to Leftist propaganda outlet The Wire, the father of Umar Khalid said, “Since May 2023, there have been several adjournments. We were assessing that this is a lengthy procedure and the circumstances have changed. So, we decided to move the trial court again, and hope for an early judgment. So we will try our luck there now”.

While the former SIMI terrorist did not clarify what the ‘changed circumstances’ were, he did attempt to play the victim by talking about the delay in the bail hearing, almost making it sound like the bail application was withdrawn due to the delay in the hearing.

This was not all, Kapil Sibal also withdrew a separate petition questioning the legality of certain sections of the UAPA, especially dealing with bail. This petition had been tagged with others that had similarly challenged the nature of UAPA. The other writ petitioners, including the Foundation for Media Professionals and individuals — the latter have accused Tripura Police of slapping FIRs under UAPA for their social media posts and fact-finding reports on communal violence in the State — have sought time to consider the option of withdrawing from the Supreme Court to move the respective High Courts. The various petitions were represented by senior advocate Huzefa Ahmadi and advocate Prashant Bhushan, Cheryl D’Souza, and Jaimon Andrews.

While there have been statements attempting to insinuate that the ‘change in circumstances’ could perhaps be the time being taken by the Supreme Court to dispense with the bail petition, a peak under the hood reveals a different story.

It was on 24th March 2022 that the sessions court denied bail to Umar Khalid, observing that a prima facie conspiracy did exist in the Delhi anti-Hindu riots case. Thereafter, on 18th October 2022, the High Court denied bail to Umar Khalid as well. Umar Khalid had challenged the lower court’s order rejecting his bail application because there was no evidence linking him to the violence that erupted in Delhi during the riots. Special Public Prosecutor Amit Prasad appearing for Delhi Police said that Khalid is one of the brains behind the riots and that he acted as a silent whisperer. He also presented Khalid’s Amravati address, proving that it was a premeditated speech in which the focus was not only CAA NRC but other alleged problems directly relevant to the Islamist community such as Triple Talaq and the Babri Masjid, among others. He said that Khalid was involved in managing the protest to sow dissatisfaction among the minorities.

With the Sessions Court and the Delhi High Court rejecting the bail application of Umar Khalid, the Supreme Court was approached on the 6th of April 2023 against the rejection of bail by the High Court.

It is pertinent to note here that while the narrative often is that Umar Khalid’s hearing has been delayed indefinitely, it was only in April 2023 that he approached the Supreme Court. Before that, he had got a 1-week reprieve to attend his sister’s marriage in December 2022.

First and foremost, there is no explanation as to why Umar Khalid waited 6 months before moving the Supreme Court for bail, after the rejection by the High Court. Secondly, while there were screeches about the delay in the hearing, there were several times when Kapil Sibal himself wanted the case to be adjourned.

In fact, out of the 14 adjournments in 2023 and 2024, 7 delays and adjournments were sought by Umar Khalid himself.

It therefore becomes evident that the withdrawal was certainly not because of the famed “delay” in hearing. Given the timeline of Umar Khalid’s bail saga, right from April 2022 to February 2024, it becomes imperative to dissect what ‘change in circumstances’ led to the withdrawal of the petitions from the Supreme Court.

It would appear that there were only two “changes in circumstances” that could have led to the decision by Umar Khalid – one is the change in judge, the other is a crucial change in law – or rather – a clarification of the law.

Change in Judge

It was on the 31st of October when a Supreme Court bench of Justices Aniruddha Bose and Bela Trivedi tagged Khalid’s bail petition with other matters challenging the constitutionality of provisions in the Unlawful Activities (Prevention) Act, 1967. The petitions include Khalid’s writ petition challenging the UAPA provisions, and the UAPA Charges Related to Tripura Violence where FIRs were filed against lawyers and journalists who undertook a fact-finding mission in the Tripura violence of October 2021.

It is also on the 31st of October that the saga of adjournments by Kapil Sibal was triggered.

On the 29th of November, the petitioners wanted the petitions de-tagged. Prashant Bhushan said that the Tripura violence case had been heard by CJI Chandrachud 8 times and therefore, this case should be heard by him as well. Justice Bela Trivedi disagreed and said that the petitions would be heard by her and the newly appointed Justice S.C. Sharma. This exchange was even though the petitions had been tagged due to Umar Khalid’s lawyers’ request to begin with.

In this instance, it was due to the unavailability of Kapil Sibal and the ASG that the hearing was pushed to January 2024.

Interestingly, in December, Prashant Bhushan had shot off an angry letter to CJI Chandrachud over the Tripura matter, with which Umar Khalid’s plea was tagged, being listed in front of Justice Bela Trivedi instead of the CJI himself. There were other letters too complaining of irregularities in cases being listed in front of Justice Trivedi – by Dushyant Dave and Abhishek Manu Singhvi.

Abhishek Manu Singhvi at the time, in a hearing related to Satyendra Jain’s bail petition mentioned the ‘irregularity’ in the case being listed in front of Justice Trivedi, which was promptly shut down by the CJI.

The CJI responded to an urgent oral mention made by former Delhi Minister Satyender Jain’s lawyer, represented by senior advocate A.M. Singhvi about the listing of his bail petition in the Delhi liquor policy case before a Bench headed by Justice Bela M. Trivedi on December 14. Singhvi said a Special Bench of Justices A.S. Bopanna and Trivedi was already hearing the case. “We have been arguing before the Special Bench. The case is already partially heard… Now, today, it has been listed before a Bench headed by Justice Trivedi. Let it continue to be heard by the earlier Special Bench,” Mr. Singhvi urged. 

Post-lunch, when the court re-convened, the Chief Justice informed Singhvi that there had been a communication from the office of Justice Bopanna that he could not resume his judicial duties after the Diwali vacations due to medical reasons. The judge’s office had asked all the part-heard matters before him to be released. Consequently, the case of Jain was shifted to the judge, Justice Trivedi, on the Bench. 

“It is very easy to fling allegations and letters,” the Chief Justice said. Solicitor General Tushar Mehta, who was present in the courtroom, said the “only way to deal with malicious letters is by ignoring them”.

Putting his foot down, the CJI had said, “If the case is listed before a judge, the judge will take a call. I will not say anything,” the Chief Justice said emphatically. This was in response to not just the issue raised by Singhvi, but also Prashant Bhushan (In the Tripura case to which Umar Khalid’s bail plea was tagged) and Dushyant Dave.

Thereafter, the hearings came up in front of the bench comprising of Justice Bela Trivedi and Justice Pankaj Mithal. This time, while the unavailability of ASG promoted the bench to postpone to hearing to 17th January, Kapil Sibal asked the court to delay it further – the hearing was set for 24th January 2024 instead.

On the 24th, the case was listed before a Bench of Justices Bela M. Trivedi and Ujjal Bhuyan. It was again the advocate of Umar Khalid who asked for an adjournment, which was granted.

On the 31st of January, a bench of Justices Bela Trivedi and Pankaj Mithal were to hear the plea. However, due to Justice Mithal’s unavailability, the newly appointed Justice P.B. Varale joined Justice Trivedi instead. While the court wanted to hear the case on the 1st of February, it was against Kapil Sibal who sought the case to be listed on another day since he would be busy with the AMU matter. To this, the judges had kept it open-ended, saying “We will see”.

When the case came up for hearing on the 1st of February, as requested by Kapil Sibal – the bench adjourned the hearing to the 7th of February, however, on the 7th, the bench was occupied in another case.

When the hearing came up on the 14th of February, Kapil Sibal withdrew the bail petition and the separate petition challenging the validity of certain sections of the UAPA.

From the timeline, it is evident that after the exit of Justice Aniruddha Bose, Umar Khalid and his lawyers – Kapil Sibal to be precise – demanded adjournments ad neuseum till the petitions were withdrawn. Further, it is evident that Prashant Bhushan also attempted to ensure that the case was listed before the CJI, a proposal struck down by Justice Bela Trivedi. This poses an important question of whether Kapil Sibal was “trying his luck” at forum shopping and having failed at that, withdrew his petition from the Supreme Court.

Change in law

Apart from forum shopping, there was another crucial development that seems to have led to Kapil Sibal withdrawing Umar Khalid’s bail application and challenging to provisions of UAPA from the Supreme Court.

On the 7th of January 2024, in a different matter, the Supreme Court clarified that in UAPA cases, jail is the norm and bail is the exception – Umar Khalid and other accused have been arguing in court that according to the law, jail is the exception and bail is the norm.

The Supreme Court was hearing an SLP challenging the denial of bail by the Sessions Court in a UAPA case, which was thereafter upheld by the High Court – a case similar to Umar Khalid’s case.

The appeal challenged the decision of the High Court of Punjab and Haryana, which upheld the rejection of bail for Gurwinder Singh in a case involving charges under various sections of the Indian Penal Code, 1860 (IPC), UAPA and Arms Act, 1959. The investigation revealed Singh’s involvement in receiving funds from a banned Khalistani terrorist organization Sikhs for Justice and attempting to procure weapons for terrorist activities. The Trial Court dismissed Gurwinder Singh’s bail application based on the seriousness of the charges and the absence of examination of protected witnesses.

The Court noted that Section 43D(5) of the UAPA alters the usual bail provisions for offenses under Chapter IV and Chapter VI of the UAP Act. It mandates that a Special Court cannot grant bail without giving the Public Prosecutor a chance to be heard. Additionally, if the court, upon reviewing the case diary or the report under Section 173 of the Code of Criminal Procedure, 1973 (CrPC) finds reasonable grounds to believe the accusations are prima facie true, bail must be denied.

The court also observed that this provision of UAPA sets the law apart and makes bail the exception, not the norm. The Supreme Court set two crucial standards for bail in UAPA matters:

  1. The court is supposed to assess the case carefully and apply a low prima facie standard while assessing the case. If the charges appear prima facie true, bail must be rejected by the court.
  2. If the prima facie standard is not met, then the court must consider other factors such as flight risk, tampering with evidence etc.

“On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:

1) Whether the test for rejection of the bail is satisfied?

1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offense under Chapter IV or VI of the UAP Act

1.2 Such examination should be limited to the case diary and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?”, the Bench observed.

The Court added, “on a consideration of various factors such as nature of the offense, length of punishment (if convicted), age, character, the status of accused, etc., the Courts must ask itself:

2.1 Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused tampering with the evidence?

2.3 Whether there is an apprehension of the accused influencing witnesses?”

In 8 other points, the court also referred to the guidelines laid down by the Supreme Court as far as the tests that the court must apply when hearing bail applications in UAPA cases:

  1. There should be evidence to establish the accused’s complicity in the crime unless specifically rebutted.
  2. Once charges are framed, it is to be assumed that strong suspicion was found by the court for such charges to be framed.
  3. Elaborate dissection of the evidence is not needed by the court at this stage. The court must have reasons to accept or reject bail, but there is no need for a detailed evaluation of evidence.
  4. “The Court is merely expected to record a finding based on broad probabilities regarding the involvement of the accused in the commission of the stated offense or otherwise.”
  5. The provisions of bail being an exception and not the norm apply right from the stage of filing the FIR.
  6. The totality of the material must be considered, no piecemeal analysis must be done.
  7. The admissibility of documents relied upon by the Prosecution cannot be questioned.

With this clarification by the Supreme Court in an SLP and case circumstances similar to that of Umar Khalid bail case, Kapil Sibal would be to know that the Court would adhere to the recent judgement and the guidelines laid down in it. With the Supreme Court making clear that bail is the exception in UAPA cases, Umar Khalid’s argument to be granted bail after being denied the same by the Sessions Court and the High Court appears weak, at best. While Kapil Sibal has claimed that they would ‘try their luck’ in the lower court, one is pressed to wonder how he would succeed there given that the lower court too would follow the guidelines clarified by the Supreme Court as recently as 7th January 2024.

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