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The Supreme Court on Monday refused to grant bail to anti-Citizenship Amendment Act activists Umar Khalid and Sharjeel Imam in the conspiracy case linked to the 2020 Delhi riots even as it allowed it for five others, Gulfisha Fatima, Meera Haider, Shifa Ur Rehman, Mohammd Saleem Khan and Shadab Ahmed.

They have been in prison for more than five years now.

The court made an exception for Khalid and Imam, arguing that both were “masterminds” and the material on record made out a “prima facie case” against them under the Unlawful Activities (Prevention) Act.

It noted that it had refrained from adopting a “collective approach” and had instead “independently examined the specific role” attributed to each accused person. “Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances,” the court explained.

Khalid and others had approached the Supreme Court to seek relief after the Delhi High Court rejected their bail pleas in September. After hearing detailed submissions from both the prosecution and the accused, the Supreme Court had reserved its verdict in December.

The seven had been arrested at various points between January and September 2020 in connection with communal violence that took place in North East Delhi in 2020. The clashes took place between supporters of the Citizenship Amendment Act, which for the first time introduced a religious clause in Indian citizenship, and those opposing it.

The violence claimed 54 lives and left hundreds injured, with most of the victims being Muslims.

On Monday, the court decided to tackle the argument made by Khalid and the others that keeping them in custody for such a long period in the absence of an early conclusion of the trial violates their right to personal liberty under Article 21 of the Constitution.

Their lawyers clarified that they were not asking the court to examine the merit of the prosecution’s case, but only to consider the delay in the trial.

However, the Supreme Court held that “delay cannot be examined in isolation” and that alone “does not automatically justify bail”. The court observed that while the “right to a speedy trial is an important part of Article 21”, this right must be balanced with national security. Under the Unlawful Activities (Prevention) Act, the right to bail is severely restricted, and courts must first see whether there is a “prima facie case under Section 43D(5) of the Act” made out against the accused, the Court added.

Under this section, a person charged with serious offences cannot be granted bail under normal circumstances. Before considering any bail application, the court must hear the public prosecutor.