On 4 July, 2026, the Delhi trial court refused to grant fresh bail to Umar Khalid and Sharjeel Imam. The two are accused of engineering the 2020 North East Delhi riots. How these two Muslim student leaders could be the masterminds behind these riots is one of the most bizarre plots that could be imagined and yet the judiciary and the people at large have accepted this allegation without the outrage and disdain it deserved. Given the approach of the judiciary in this case, it was not surprising that the trial court simply dismissed the bail application, saying it was bound to follow the Supreme Court’s January 2026 judgment in which the apex court had accepted the prosecution’s argument that the evidence against Umar and Sharjeel placed them on a qualitatively different footing compared to the other co-accused who had been granted relief such as Gulfisha and Khalid Saifi.
Both Umar Khalid and Sharjeel Imam have spent six years in judicial custody. However, their trial has yet to commence. This means their journey for justice has not even started. Can there ever be a greater travesty of justice?
The key issue in their case is that of the duty of the state (to provide safety and security to its citizens) versus the fundamental right of personal liberty. Is this pre-trial incarceration compatible with Article 21 of the Constitution? On a side note, there is nothing in our polity that punishes or holds anyone accountable from the top hierarchy of the executive (be it the government or law enforcement agencies) for its failure to protect the lives of its own citizens. Thus, we can say that for Umar and Sharjeel, the process of seeking justice has by itself become a punishment. Even if they are proven innocent, they would already have undergone a punishment as harsh as when they were proved guilty.
Bail the Rule
The Indian criminal law rests on the presumption of innocence. A person is not guilty merely because of an arrest or a chargesheet. Pre-trial detention should normally be limited to prevent the accused from disappearing, tampering of evidence, or trying to influence witnesses. This has been reiterated by a bench of Justice BV Nagarathna and Justice Ujjal Bhuyan of the Supreme Court of India on 18 May 2026 while granting bail to Syed Iftikhar Andrabi, a Jammu and Kashmir resident accused in a narco-terror case investigated by the National Investigation Agency (NIA).
Andrabi spent almost six years in custody awaiting trial before the SC granted him bail. The apex court declared,“Even under the UAPA, bail is the rule and jail is the exception.” Another important constitutional theme is the right to a speedy trial. The simple reason is the irreparable damage such criminal cases cause to the accused and his/her family.
Nobody can reverse and compensate for the family trauma, family separation, lost career opportunities and loss of dignity for prolonged periods of incarceration. In the Andrabi judgment the SC said,“Ideally, the more serious the accusations are, the speedier the trial should be.”
Draconian
Canadian novelist Steven Erikson once said, “Laws decide which forms of oppression are allowed, Lord. And because of that, those laws are servants to those in power, for whom oppression is given as a right over those who have little or no power.”
Few legislations in contemporary India have generated as much constitutional debate as the Unlawful Activities (Prevention) Act (UAPA). While enacted to combat terrorism and protect national security, several of its provisions, particularly those governing bail, have drawn sustained criticism from legal scholars and civil liberties advocates, who contend that they can, in certain circumstances, enable prolonged pre-trial incarceration. An article on UAPA in EPW Engage quotes the Supreme Court Observer, which points out, “The UAPA is a political stalemate wherein once one is charged with it, there is no easy way out. The amendment made to Section 43D (5) of the UAPA as a consequence of the Bombay terror attacks in 2008, makes it even harder for the person accused to seek bail. The Amendment introduced Section 43D (5), which required a Court to deny bail if there were reasonable grounds to believe that the case against the accused was prima facie true. The provision made bail difficult to secure, since it required the Court to assess guilt only by looking at the chargesheet prepared by the National Investigation Agency (NIA). The accused cannot provide any evidence outside the chargesheet in their defence.
Union of India v. K.A. Najeeb
The Union of India v. K.A. Najeeb (2021) is a landmark case in which the Supreme Court of India took a just position regarding the application of UAPA. In this case, K.A.Najeeb faced charges under UAPA for his alleged involvement in an act of violence allegedly committed by the workers of the Popular Front of India (PFI). The case dragged on in the lower courts and it took five years to reach the apex court. At that time Najeeb was an undertrial prisoner and there was no chance of the trial commencing because of a long list of witnesses. As usual, the NIA strongly opposed Najeeb’s bail. Their argument was that Section 43D(5) of the UAPA mandates the rejection of bail if the court accepts that the accusations are prima facie true.
However, a three-judge bench of the Supreme Court rejected this interpretation by the NIA. The Supreme Court explicitly ruled that Section 43D(5) of the UAPA cannot override the fundamental rights guaranteed under the Constitution. It held that if a trial is likely to be protracted to the point where pre-trial detention begins to mirror a punitive sentence, the Constitutional Courts retain the power to grant bail to enforce the Right to a Speedy Trial under Article 21.
Many legal experts and human rights activists feel that the Najeeb verdict sets a healthy precedent to prevent UAPA from turning the ‘process into the punishment’. In this way the state cannot extinguish the right to personal liberty of an individual in the name of national security. The interpretation of the stringent bail provisions under the UAPA and their relationship with the constitutional guarantee of personal liberty have been referred by the Supreme Court to a larger Bench.
Let us hope the larger Bench of the Supreme Court decides the pending constitutional questions relating to bail under the UAPA at the earliest so that much-needed clarity is brought to this important area of law. Constitutional liberties form the foundation of our republic and any dilution on that count weakens our adherence to democratic and constitutional principles.