How bench changes have meant unending bail proceedings in the Delhi riots case

On August 29, the Delhi High Court bench of Justices SK Kait and Girish Kathpalia had fixed for final hearing on October 7 the bail applications of eight Muslims accused of conspiring to give effect to the 2020 Delhi riots.

However, on September 21, Kait was transferred by the Union government to the Madhya Pradesh High Court, where he was appointed the Chief Justice.

With this, the bail applications of the eight co-accused would have to be heard all over again before a new bench of the high court. This is the third time this will happen in two and a half years.

A Scroll analysis found that the bail applications of these eight Muslims accused in the conspiracy case have been listed at the High Court several times since 2022 – with the number of listings ranging between 45 for one case and 72 for another. Yet, they have not been decided in spite of arguments being heard out by two different benches of the court, due to the judge leading the bench hearing the case being transferred out of the High Court.

The result of this has been the accused serving out long periods in jail, which goes against the Supreme Court’s directive regarding bail applications being decided expeditiously.

The conspiracy case

The Delhi riots larger conspiracy case stems from first information report no. 59/2020 by a Special Cell of the Delhi Police against 20 students, activists, local politicians and residents of the city for allegedly conspiring to plan and execute communal riots that swept northeast Delhi in February 2020, resulting in 53 deaths – two-thirds of them Muslim – and over 700 injuries.

Of the 20 accused, 18 are Muslim. Twelve of them, all Muslim, remain under prison, with six granted bail and two yet to be arrested. Scroll examined the bail applications of eight of the accused still behind bars whose bail applications have been pending before the Delhi High Court since 2022.

All of them have been charged under the anti-terror Unlawful Activities (Prevention) Act, apart from grave offences under the Indian Penal Code, the Arms Act and the Prevention of Damage to Public Property Act.

Scroll has reported that courts in Delhi adjudicating on matters relating to the riots have severely criticised the Delhi police’s investigation and faulted it for planting false evidence while dismissing at least 60 such cases over the last four years.

Note: A case being listed does not ensure it will be heard that day as it may be delayed due to lack of time, adjournment requests or other reasons such as issuance of notice, calling for counter affidavits or other procedural work or the judges not being available.

Never-ending bail hearings

In 2022, the Supreme Court had directed all courts to adjudicate bail applications within two weeks of them being filed. This timeline is rarely adhered to, especially in cases involving the stringent Unlawful Activities (Prevention) Act, under which it is notoriously difficult to secure bail.

However, the Supreme Court held in July that prosecution agencies must not oppose bail in cases in which trial is not likely to begin any time soon so as to uphold the rights of the accused under Article 21 of the Constitution that guarantees the right to life and liberty.

In the Delhi riots larger conspiracy case, not only has trial not begun but charges are yet to be framed even as the accused persons have spent over four years in custody.

Bail pleas of all the accused persons were rejected by lower courts. After having approached the High Court, the bail applications of the eight accused persons that Scroll examined have become stuck in limbo, pending adjudication for years.

The eight cases were originally heard by a special division bench led by Justices Siddharth Mridul and Rajnish Bhatnagar from towards the end of 2022 till October 2023. Despite being listed multiple times and hearings even being concluded in the bail pleas of five accused – Khalid Saifi, Gulfisha Fatima, Shifa ur Rehman, Meeran Haider, and Mohd Saleem Khan, the pleas faced a major disruption when Mridul was transferred, taking up the position of Chief Justice of the Manipur High Court on October 16, 2023.

This development led to the reassignment of the bail appeals to a new two-judge bench headed by Kait. This meant the cases had to again be reargued from scratch.

The individual experiences of the accused illustrate the impact of the bench reassignment.

Sharjeel Imam's bail plea, initially listed in April 2022, had been heard by the Mridul-Bhatnagar bench on 44 occasions between May 2022 and October 2023, with several adjournments and procedural delays. After being reassigned to Kait’s bench, this progress was nullified.

Meeran Haider’s case saw similar delays: listed 72 times before different benches of the High Court since May 2022, it progressed only on nine days, with arguments occurring on four occasions and procedural work on five others. Even though judgments were reserved in Haider’s case by March 2023, the change in bench composition meant that the hearings would essentially have to start over.

Haider eventually withdrew his bail application from the High Court in September, reportedly due to the long pendency of the plea. He will approach a trial court for bail again.

Other accused faced comparable issues. Khalid Saifi’s bail plea was listed 44 times before the special bench of of Mridul and Bhatnagar, with judgments reserved twice: initially in December 2022, and again in January 2023 after new arguments were presented. Gulfisha Fatima’s case followed a similar path, being listed 51 times with judgement reserved in February 2023. Despite these cases progressing to the stage of reserved judgments, the reassignment to Justice Kait’s bench meant that these outcomes were stalled indefinitely.

The frequent changes in bench composition and the reassignment to a new bench after Mridul’s transfer also affected the unreserved cases of Shadab Ahmed, Athar Khan and Imam. Their bail pleas had been repeatedly listed but made little progress, facing adjournments or instances where the bench "did not assemble" due to scheduling conflicts. This was because both Mridul and Bhatnagar led separate benches and had to sit together specifically for this special bench, which met only once a week.

The reassignment to Kait’s bench did not expedite matters. Since November 2023, all the cases were listed over ten times without adjudication. Again, the applications were heard on only some of the listing dates, with others spent on adjournments due to lawyers or judges not being available.

Kait was in various hearings partnered on the bench with Justices Shalinder Kaur, Manoj Jain and Kathpalia, due to periodic roster changes. In the Indian judiciary, rosters refer to the schedule or assignment of cases to different judges or benches by the chief justice of the court, specifying which judge or bench will hear particular types of cases. Having multiple judges hear a matter at different times is inefficient because each new judge must spend time getting familiar with the case's details, leading to delays and repeated proceedings.

In July 2024, when the bail pleas of six of the eight Muslims, namely Imam, Haider, Rehman, Ahmed, Athar Khan and Saleem Khan, were listed before a bench of Justices Prathiba M. Singh and Amit Sharma after a change in the roster, the hearing could not proceed due to Sharma’s recusal. This further complicated the already lengthy process, as the cases had to be scheduled yet again before another bench.

Later that month, the Supreme Court collegium recommended the elevation of Kait as the Chief Justice of the Jammu and Kashmir and Ladakh High Court. This means that Kait was aware that he was being considered for transfer out of the Delhi High Court. Yet, he posted the matter for final hearing in October and refused Imam’s application in September for early hearing in the matter. Now with assignment before a fresh bench due to Kait’s transfer to the Madhya Pradesh High Court, the bail applications are set to be delayed adjudication further.

These long delays for bail are, in theory, against the law. The Supreme Court, in a verdict in August granting bail to an accused under the Unlawful Activities (Prevention) Act, pointed out that Article 21 of the Constitution guarantees the right to a speedy trial and timely judicial proceedings, irrespective of the nature of the crime. However, implementation of this order has been spotty, as the Delhi riots cases show.

The bail pleas of seven out of the eight accused are now placed before a bench of Justices Navin Chawla and Kaur, set for a fresh hearing on November 25, while the eighth accused, Haider, withdrew his plea from the High Court last month.

The Supreme Court on Friday urged the High Court to expedite the hearing of Imam’s bail application after he filed a writ petition earlier this month seeking a direction to the High Court for swift disposal of the matter. The Supreme Court did not order any deadline, though.