New Delhi, 5 Jan

The Supreme Court on Monday refused bail to activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case but granted it to five others, citing "hierarchy of participation" and saying all accused in the case do not stand on the same footing.

There was a prima facie case against Khalid and Imam under the Unlawful Activities (Prevention) Act, a bench of Justices Aravind Kumar and N V Anjaria said. While the two will remain in jail, activists Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd. Saleem Khan and Shadab Ahmad have been given bail.

Khalid and Imam can file fresh bail applications after the examination of protected witnesses or after one year from today, the court said. The two stand on qualitatively different footing as compared to other accused, it said.

The prosecution prima facie disclosed "a central and formative role" and "involvement in the level of planning, mobilisation and strategic direction extending beyond episodic and localised acts", the bench said.

The February 2020 riots in northeast Delhi left 53 peopledead and more than 700 injured.

According to the court, delay in trial does not operate as a "trump card" which automatically displaces statutory safeguards.

"All the appellants do not stand on equal footing as regards culpability. The hierarchy of participation emerging from the prosecutions case requires the court to examine each application individually," the bench said, adding that the roles attributed to them are different.

"This court is satisfied that the prosecution material disclosed a prima facie allegation against the appellants Umar Khalid and Sharjeel Imam... This stage of proceedings does not justify their enlargement on bail," the apex court said.

Directing the trial court to expedite the process of bail, the bench imposed 12 conditions and said the misuse of liberty would attract the cancellation of the bail.

"Right to liberty under Article 21 of the Constitution requires the State to justify prolonged pre-trial custody," the bench said.

The top court said that while bail in UAPA cases is not given as a matter of routine, the law does not mandate denial of bail as default. It also does not exclude the court's jurisdiction to allow bail.

Imam was arrested on 28 January 2020 for speeches made during anti-CAA protests. He was later arrested in a larger conspiracy case in August 2020. Khalid was arrested on 13 September, 2020.

On 10 December, the top court reserved its verdict on separate pleas of the accused after hearing arguments from Solicitor General Tushar Mehta and Additional Solicitor General S V Raju, appearing for Delhi Police, and senior advocates Kapil Sibal, Abhishek Singhvi, Siddhartha Dave, Salman Khurshid and Sidharth Luthra, appearing for the accused.

Strongly opposing the bail pleas, Delhi Police said the riots were not spontaneous but an orchestrated, pre-planned and well-designed attack on India's sovereignty.

Raju contended that all the participants are liable for each other's acts in a conspiracy. Acts of one conspirator can be attributed to others. Imam's speeches can be attributed to Umar Khalid. And Imam's case will be considered as evidence against the others, he told the bench, which conducted hearings on the bail pleas on multiple days.

The additional solicitor general argued that Khalid deliberately planned to leave Delhi before the riots as he wanted to deflect responsibility.

Seeking bail, Imam expressed anguish before the apex court for being labelled a "dangerous intellectual terrorist" without a full-fledged trial or a single conviction.

Senior advocate Siddharth Dave, appearing for Imam, contended that he was arrested on January 28, 2020, which was before the communal violence rocked northeast Delhi, for his speeches that alone cannot constitute the offence of criminal conspiracy in the riots case.

All seven accused were booked under the stringent anti-terror UAPA and provisions of the Indian Penal Code (IPC) for allegedly being the "masterminds" of the riots.

According to Section 16 of the UAPA, "Whoever commits a terrorist act shall, if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine."

The violence erupted during widespread protests against the Citizenship (Amendment) Act (CAA) and the National Register of Citizens (NRC).

The accused moved the apex court, challenging the Delhi High Court's 2 September order denying them bail in the larger conspiracy case of the February 2020 riots.