When Bail Is Deferred, Liberty Is Denied
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By Our Editorial Team
First publised on 2026-01-06 12:33:56
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The India Commentary view
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The Supreme Court's refusal to grant bail to Umar Khalid and Sharjeel Imam, more than five years after their arrest in the Delhi riots case, represents a troubling retreat from its own settled principle that bail is the rule and jail the exception. It also exposes how easily constitutional safeguards are diluted when confronted with a harsh statute, prosecutorial assertions and judicial caution.
Bail under the Unlawful Activities (Prevention) Act is undeniably difficult. The law inverts the presumption of liberty and places an onerous burden on the accused. Yet the Court has repeatedly held that prolonged pre-trial incarceration - especially where a trial shows no realistic prospect of early completion - must relax these rigours. In this case, that principle has been reduced to a formality.
The Court concedes that Khalid and Imam have undergone "substantial" pre-trial incarceration. Still, it holds that five years in prison has not crossed the "threshold of constitutional impermissibility". This formulation is deeply unsettling. Constitutional violations do not mature on a timetable. Liberty does not become negotiable simply because the Court believes the invisible line has not yet been reached.
The direction that the accused may apply for bail again after a year only compounds the problem. It effectively converts delay into punishment, institutionalizing incarceration without trial. A constitutional court cannot allow liberty to depend on the passage of another arbitrary year.
Equally problematic is the distinction drawn between Khalid and Imam and five co-accused who were granted bail. The Court constructs a hierarchy of culpability, placing them on a "higher footing" based on an alleged "central and formative" role. This assessment rests not on tested evidence but on the prosecution's narrative. While insisting that bail hearings are not mini-trials, the Court proceeds to evaluate roles and degrees of involvement - a task properly reserved for trial courts.
The implications are graver still when viewed through the lens of what constitutes a "terrorist act". The prosecution stretches Section 15 of the UAPA to include speeches, WhatsApp groups, protest mobilisation and road blockades. By accepting this expansive framing, the Court risks blurring the line between terrorism and political dissent. In a democracy, that is a dangerous conflation.
This is not a judgment on guilt or innocence. It is a warning about process becoming punishment. When years of incarceration precede adjudication, the promise of personal liberty under Article 21 is hollowed out.
Courts exist to protect liberty, especially in politically charged cases. By choosing caution over constitutional clarity, the Supreme Court risks normalising prolonged detention as an acceptable feature of criminal justice. That is a precedent India can ill afford.
