SC Declines Bail for Gulfisha Fatima in UAPA Case, Cites Pending High Court Decision

In a case that underscores the challenges of delayed trials and pre-trial detention under stringent anti-terror laws, the Supreme Court of India on Monday, November 11, declined a writ petition seeking bail for Gulfisha Fatima. This activist has been in custody for over four years, charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA) for her alleged role in a conspiracy tied to the 2020 Delhi riots. Despite the Supreme Court’s decision not to grant bail, it has directed the Delhi High Court to consider her plea urgently.

Supreme Court’s Directive: A Push for Prompt High Court Review

• While denying bail directly, the Supreme Court nudged the Delhi High Court to hear Fatima’s bail plea on its scheduled date of November 25. This gentle but firm directive was a clear acknowledgment of the pressing need to address Fatima’s prolonged detention.
• Justice Bela Trivedi, part of the bench, noted that Sharjeel Imam, another accused in the same case, had also been denied bail with a similar instruction for the High Court to expedite his case.

Advocate Kapil Sibal’s Impassioned Plea

• Kapil Sibal, the seasoned Senior Advocate representing Gulfisha, highlighted the harrowing details of her detention. Sibal painted a picture of stalled proceedings and systemic delays that have kept the 31-year-old activist behind bars.
• Sibal argued passionately: “This lady has been inside for four years and seven months… the presiding officer was on leave on 24 dates, and on another 26 dates, no arguments were heard, and the matter was simply adjourned.”
• Drawing attention to the human toll of these delays, he remarked, “What is the point of keeping someone in for 4 years and 7 months in jail? She is a lady, aged 31 years. No question of a trial beginning.”

A Tug-of-War Over Article 32 and the Right to Seek Relief

• Justice Trivedi firmly noted that seeking relief under Article 32 is premature here, as a statutory remedy in the Delhi High Court remains open.
• Sibal, however, countered by referencing the Supreme Court’s landmark judgment in K.A. Najeeb, which observed that lengthy incarceration without trial could justify bail. He emphasized: “The presence of statutory restriction… does not oust the ability of constitutional courts to grant bail… when trial completion is unlikely within a reasonable time.”
• In response, Justice J.B. Pardiwala remarked that the K.A. Najeeb judgment addressed an appeal from a High Court decision, underlining, “This is coming out of an order of the High Court. So the procedure was followed.” This statement gently reminded that procedural norms were respected in that case.

A Plea for Timely Justice

• Arguing for a fixed timeline, Sibal urged the Court to set a deadline for the Delhi High Court to resolve Fatima’s bail plea. He stressed the importance of time, asserting, “If not expeditiously directed, it may be postponed indefinitely. Either you give two weeks, and we’ll go and conclude the matter.”

Supreme Court’s Order: Setting the Stage for November 25

• The Supreme Court summed up its order with clarity: “We are not inclined to entertain the writ petition under Article 32 of the Constitution. It is stated that the next date fixed before the High Court is 25th November. Since the petitioner has been in custody for four years and seven months, it is requested that the bail application may be heard on the date fixed unless there are extraordinary circumstances.” This direction, though procedural, highlighted the Court’s implicit concern over prolonged detentions under UAPA.

Background: Gulfisha Fatima’s Legal Odyssey

• Gulfisha Fatima has been in judicial custody since April 11, 2020. Initially, she was granted bail in FIR No. 50/2020 related to the riots, but in March 2022, her bail was denied in the present UAPA case. The Delhi Sessions Court presided by Additional Sessions Judge Amitabh Rawat ruled that the allegations appeared prima facie credible, triggering the restrictive Section 43D of UAPA.

The Case’s Current Status in the Delhi High Court

• Gulfisha’s bail plea awaits review by the Delhi High Court, which initially had Justices Siddharth Mridul and Rajnish Bhatnagar on the bench. Following Justice Mridul’s elevation as Chief Justice of the Manipur High Court, Justices Navin Chawla and Shailender Kaur are expected to hear the case from November 25, 2024 onward.

Parallel Case of Sharjeel Imam: A Mirror to Fatima’s Plea

• Co-accused Sharjeel Imam also petitioned for bail, but the Supreme Court dismissed his plea on October 25, stressing the need for the Delhi High Court to expedite his bail hearing as well. This parallel case shines a light on the systemic delays in handling such UAPA cases, emphasizing the intricate interplay between procedural rigors and individual liberties.

The Broader Picture: 2020 Delhi Riots and the UAPA’s Role

• Gulfisha and other activists stand accused of a “larger conspiracy” that allegedly ignited the February 2020 Delhi riots. Charges under Sections 13, 16, 17, and 18 of UAPA, the Arms Act, Prevention of Damage to Public Property Act, 1984, and Indian Penal Code, 1860 form the basis of the allegations.
• September 2021 saw a main chargesheet against activists Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha, and Gulfisha Fatima. A supplementary chargesheet filed in November extended charges to Umar Khalid and Sharjeel Imam. Both activists have been detained on allegations of orchestrating the riots through organized protests.
• Interestingly, in June 2021, the Delhi High Court granted bail to Kalita, Narwal, and Tanha, noting that their organization of protests did not constitute an offense under UAPA. The Supreme Court upheld this judgment, dismissing the Delhi Police’s challenge against their bail.

A Balancing Act Between Security and Liberty

This case reflects the challenging balance between national security and individual liberties under anti-terror laws like UAPA. Gulfisha Fatima’s prolonged detention, despite the delays in trial and repeated adjournments, is a stark reminder of the tension between procedural norms and personal freedoms. As her bail application awaits its hearing on November 25, the Court’s directive to the Delhi High Court serves as a reminder of the pressing need for judicial efficiency in cases involving fundamental rights and liberty.

Case Title: GULFISHA FATIMA v STATE (GOVT OF NCT OF DELHI) W.P.(Crl.) No. 446/2024