By Joseph Maliakan

New Delhi, Jan 31, 2025: Granting bail to a Muslim cleric arrested 11 months ago under the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021, the Supreme Court has ruled that judges on their whims and fancies cannot deny bail to any accused saying that conversion is something serious.

Instead, judges should show courage to grant bail, said the bench comprising Justices J.B Padiwala and R. Mahadevan while granting bail to Syed Shad Kazmi on January 20.

“We can understand that the trial court declined bail as trial courts seldom muster the courage of granting bail, be it any offence. However, at least, it was expected of the High Court (Allahabad) to muster the courage and exercise its discretion judiciously ” the order pointed out.

The state counsel submitted that the Muslim cleric was arrested for converting a mentally challenged minor boy to Islam, under the anti-conversion law which carries a maximum punishment of 10 years imprisonment. The petitioner submitted that the boy was abandoned on a street in Kanpur, Uttar Pradesh, by the family and the cleric gave shelter to the minor boy on humanitarian grounds.

After hearing both sides, the apex court bench observed that “We are of the view that the High Court should have exercised its discretion by granting bail to the petitioner. There was no good reason for the Allahabad High Court to decline bail. The offence alleged is not that serious or grave like murder, dacoity, rape etc.”

Soon after the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021 was passed critics had said that the law will be extensively misused against religious minorities. The law said that, in case the conversion is of a minor, scheduled caste, scheduled tribe or a woman, the guilty will face the jail term of three to 10 years and a fine of 25,000 rupees.

And in the case of mass conversion (conversion of more than two persons according to the law ), the guilty will face a jail term of three to 10 years and a fine of 50,000 rupees.

The law clearly is in violation of Article 25 (1) of the Constitution which guarantees to every citizen the freedom of conscience and free profession , practice and propagation of religio : subject to public order, morality and health, and not merely to the followers of one particular religion.

Under the circumstances, the Supreme Court said the trial court itself should have been courageous enough to exercise its discretion and release the petitioner on bail.

Acknowledging the grant of bail is matter of discretion, Supreme Court said, “Discretion has to be exercised judicially keeping in mind the well settled principles of grant of bail. The petitioner is going to be put to trial and ultimately if the prosecution succeeds in establishing its case, he would be punished,” the order said.

The orderfurther said that year after year many conferences, workshops and seminars are held to educate the trial judges understand how to exercise their discretion while considering bail applications. The reluctance of the trial judges to grant bail even in highly deserving cases leads one to the conclusion that the trial judges do not understand the scope of Section 439 of the Criminal Procedure Core (CrPC) or Section 483 of the Bharatiya Nagrik Sureksha Samhita (BNSS).

The SC further said, “At times when the High Court declines bail in matters of the present type, it gives an impression that altogether different considerations weighed with the presiding officer ignoring the well settled principles of grant of bail. What harm would have been done if the petitioner was released on bail,” the Supreme Court judges wondered.

“This is one of the reasons why the High Courts and now unfortunately the Supreme Court also are flooded with bail applications,” the bench said.

The supreme court observations comes in the backdrop of undertrial prisoners constituting 75.8 percent of prisoners in Indian jails, which have already 131.4 percent occupancy.

Further, 60 percent of the prisoners are either illiterate or come from marginalized sections of society. Scheduled caste, Scheduled tribe and Muslim people constitute the majority of the prison population.