Bail Has Become The Exception Under UAPA
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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By Sunil Garodia
First publised on 2026-01-09 10:59:27
About the Author
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
View all posts by this Author
On January 5, 2026, the Supreme Court of India denied bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots "larger conspiracy" case, while granting it to five co-accused. This split reaffirms a grim UAPA reality: constitutional liberty yields to prolonged pretrial detention, now treated as routine even after five-plus years without trial.
Justices Aravind Kumar and N.V. Anjaria cited individualized roles - Khalid and Imam as alleged planners, others (Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd Saleem Khan, Shadab Ahmed) as peripheral. Orthodox on paper, this masks the effective suspension of Article 21 in UAPA cases.
The prosecution alleges a premeditated plot masked as anti-CAA protests, fueled by WhatsApp groups, speeches, and "chakka jams," and timed to Donald Trump's 2020 India visit - grave if proven. Yet the core issue is trial, not incarceration as penalty. "Bail is the rule, jail the exception," rooted in Article 21 and the presumption of innocence, flips under UAPA's Section 43D(5), which mandates denial if accusations appear prima facie true.
NIA v. Zahoor Ahmad Shah Watali (2019) hardened this inversion by barring merits scrutiny at the bail stage; Union of India v. K.A. Najeeb (2021) offered a fragile counterbalance by recognising that prolonged detention can override statutory bars. Here, five years' delay tipped the scales for five accused - but not for Khalid and Imam, deemed "masterminds." The perversity is evident: graver allegations attract less Article 21 weight, even when entirely untested.
A "surface analysis" that accepts prosecution chats, protected witnesses, and speeches as sufficient collapses allegation into proof. In conspiracy cases, this risks criminalising association and protest organisation - constitutionally protected unless they incite imminent violence. Differential bail further defies logic: if danger is the concern, why are alleged implementers treated as less risky than alleged planners?
UAPA's broader record deepens the concern. NCRB data shows roughly 4,700 arrests between 2018 and 2020, with convictions below 3 percent. The process becomes the punishment. While bail risks such as flight or evidence tampering are real, five-year pretrial detentions far exceed global norms in democratic systems, even in terrorism cases.
The Court could have mandated an expedited trial, shifted the burden after prolonged delay, or imposed stringent conditions consistent with Najeeb. It chose restraint. The result is a dual system: liberty remains the norm in ordinary criminal law, while detention becomes the default under UAPA.
Khalid and Imam's guilt or innocence awaits trial. What is already clear is that five years of untested incarceration constitutes a miscarriage of justice regardless of outcome. The Court missed an opportunity to reaffirm that liberty does not evaporate under UAPA. When exceptions devour rules, the rule of law gives way to rule by accusation. The Constitution demands better.
