The bail rule is not an empty slogan, even in UAPA and ‘terror’ cases: Supreme Court

The Supreme Court’s observations came in a judgment granting bail to a Jammu and Kashmir man accused in a narco-terrorism case in which he was jailed for five years under the UAPA. File. | Photo credit: The Hindu

The Supreme Court on Monday (May 18, 2026) expressed “serious reservations” on “various aspects” of its January 2026 judgment denying bail to former JNU student leader Umar Khalid and co-accused Sharjeel Imam in the Delhi riots “larger conspiracy” case, including taking away their right to seek bail for a year.

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The rare act of self-reproach came more than a year after the Supreme Court convicted Mr Khalid and Mr Imam as the “alleged masterminds” of plotting the 2020 Delhi riots.

By the time his bail application was rejected, Mr Khalid had already spent more than five years in prison as an undertrial.

The Delhi Police charged Mr. Khalid and other activists under the Anti-Terrorism Act, the Unlawful Activities (Prevention) Act, or UAPA, for their involvement in organizing protests against the Citizenship (Amendment) Act.

On Monday (May 18, 2026), Justices BV Nagarathna and Ujjal Bhuyan said that bail was indeed the rule even in UAPA cases.

Justice Bhuyan, who authored the judgment, said the phrase “bail is the rule and imprisonment the exception” is not just an empty slogan but a constitutional principle flowing from the fundamental rights to life, speedy trial and freedom from arbitrary arrest and detention. Remarks by the court on Monday (May 18, 2026) yielded a verdict that granted bail to a Jammu and Kashmir man accused in a narco-terrorism case in which he was jailed for five years as an accused under the UAPA.

Justice Bhuyan said the right to personal liberty and speedy trial cannot be “subordinated” to the draconian bail provision, Section 43-D(5), UAPA.

He pointed out that the UAPA set the threshold for denying bail so low that the state only had to prove that the allegations against the accused were “prima facie” true. Once that happened, bail would be “absolutely inadmissible” for him.

“The State need only meet a low prima facie threshold, while the trial may go on for years with the result that pre-trial detention becomes post-trial punitive and even then no court could ever grant bail irrespective of the duration of such detention as the case was prima facie against the accused,” Justice Bhuyan observed.

The Supreme Court said that an accused cannot be jailed indefinitely just because the state has been able to “satisfy” the low bar for denying bail in UAPA cases.

Justice Bhuyan said the effectiveness of Section 43-D(5) should be “melted down” by constitutional courts intervening and granting bail in UAPA cases in which the accused have already suffered prolonged imprisonment due to delayed trials. Case in point was the case of Mr. Khalid.

“Constitutional Courts can always step in to grant bail despite meeting the ‘prima facie’ threshold under Section 43-D(5). The Section need not review the grant of bail if the liberty of the accused is violated for a prolonged period,” Justice Bhuyan observed.

The power of the Constitutional Court to protect the right to life of the UAPA accused against arbitrary detention cannot be limited only by a provision like Section 43-D(5) of the Act, the Bench pointed out.

“The provisions of § 43-D paragraph 5 always remain subject to Article 21 (fundamental right to life). The Constitutional Court does not have to withhold bail from an accused in the clothing of § 43-D paragraph 5,” the Supreme Court emphasized.

Justice Bhuyan said the basic principle that a person is presumed innocent until proven guilty is “the cornerstone of any civilized society governed by the rule of law”. Clause 5 of Section 43-D has turned delay in the trial itself into punishment.

The court said laws like the UAPA can calibrate how the presumption of innocence is applied, particularly in cases involving national security or terrorist offenses, but cannot completely overturn the constitutional relationship between liberty and detention.

The Supreme Court has expressed deep concern over some of its verdicts “hollowing out” larger Bench verdicts, such as the KA Najeeb case, which upheld personal freedom against abuse by the state.

Published – 18 May 2026 12:16 PM IST