On July 18, 2024, a Division Bench of the Supreme Court decided the appeal in Sheikh Javed Iqbal v. State of Uttar Pradesh [2024 INSC 534 ("Sheikh Javed Iqbal")], allowing the appeal and granting bail to a person accused of having committed offences under Sections 489B, 489C of the Indian Penal Code 1860 [IPC] and Section 16 of the Unlawful Activities (Prevention) Act 1967 [UAPA]. Notably, the accused had been in custody for more than nine years. Charges had been framed and his trial was pending, but only two prosecution witnesses had so far been examined when the bail was heard by the Supreme Court.
The observations at Paragraph 32 of the judgment merit reporting in full:
"This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence."
If you do not pay close attention, the paragraph reads like a sonorous tribute to law safeguarding personal liberty, with repeated incantations of "Constitution", "Constitutional Court" and "Constitutionalism" for good measure. It is only once you pay close attention do you realise that the paragraph is, in fact, hot air. A straw-man is put up — statutory provisions curbing constitutional rights — and is then knocked down with flair.
Similarly, the observations at Paragraph 28.2 from Sheikh Javed Iqbal that an earlier judgment on bail in UAPA cases, Zahoor Ahmed Shah Watali, "cannot be cited as precedent to deny bail in UAPA cases where the accused has suffered long incarceration", are again a straw-man. To say that Watali can't be used for this purpose is to not really say anything of note because it obviously cannot be used as binding precedent for this purpose since it never said anything about delayed trials and lengthy incarceration. What Watali stands for is a judicial approach which justifies giving the prosecution a wide berth to deny bail in UAPA cases. If anything, to understand how Sheikh Javed Iqbal treats Watali what is more relevant is Paragraphs 27.2 and 28.1, which show that rather than watering down Watali the new judgment reinforces the legal correctness of the approach in Watali for deciding bail under UAPA cases.
What Sheikh Javed Iqbal does is to restore the primacy of the curious constitutionalism that the Supreme Court has consistently displayed an adherence to when it comes to bail especially in UAPA cases besides some other categories as well, where Article 21 somehow shines much brighter once a person has suffered lengthy incarceration. That the Court in Sheikh Javed Iqbal had to offer such a lengthy justification to invoke this approach is only because five months ago in Gurwinder Singh a different bench of the Court decided that even this was too much liberty to swallow when it came to UAPA cases.
Paragraphs 22 to 29 of Sheikh Javed Iqbal give us a concise history of this stream of Article 21 logic. I call it a curious constitutionalism because it is not invoked to justify a consistently robust take on how courts must review the prosecution's presenting a prima facie case for denying bail. It is not invoked to explain legal intricacies — for instance, how to deal with UAPA bails once charge has been framed. Instead, this curious constitutionalism with its ode to Article 21 shines through only once an accused has served a meaningfully long period of incarceration as an undertrial. It is also invoked in a restrictive sense, by emphasising the constitutional courts powers and in one fell swoop justifying restrictive approaches for our trial courts. After giving the state enough time to try and run its case with the accused behind bars, a Court — not a trial court mind you — turns around and now tells us that enough is enough and the person must be freed because now the Constitution would be sullied by continuing his custody.
This is not constitutionalism, but a jurisprudence of apology, of doling out mercy as and when deemed fit. Let us not pretend otherwise.
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