Expanding the Terror Lens: Supreme Court on UAPA, Bail and ‘Terrorist Acts’

Why in News ?

The Supreme Court of India granted bail to five accused in the 2020 Northeast Delhi riots case but denied bail to Umar Khalid and Sharjeel Imam, holding that all accused did not stand on equal footing despite facing similar charges under the Unlawful Activities (Prevention) Act (UAPA).

The ruling is significant not only for its bail outcome but for its expansive interpretation of “terrorist act” under UAPA, the creation of a hierarchy of culpability, and its clarification on the limits of prolonged pre-trial incarceration under anti-terror laws.

Hierarchy of Roles in the Alleged Conspiracy

Individualised Assessment of Culpability

The Supreme Court rejected a blanket approach to culpability and emphasised that each accused must be assessed based on their role within the alleged conspiracy.

The Court introduced a graded or hierarchical framework of responsibility, distinguishing between:

• Principal planners, and
• Peripheral or facilitative actors

Principal Accused: Alleged Masterminds

In the case of Umar Khalid and Sharjeel Imam, the Court accepted the prosecution’s claim that they occupied a central and directive role.

They were described as:

• “Ideological drivers”
• “Masterminds” involved in
  • Conceptualisation
  • Direction
  • Orchestration
  • Mobilisation

The Court held that they allegedly planned coordinated disruptions, including chakka jams, intended to paralyse civic life and escalate protests into mass disorder.

Co-Accused Granted Bail: Peripheral Roles

The five accused granted bail were characterised as:

• Local-level facilitators
• Site-specific executors

Their roles were deemed derivative, lacking autonomy or strategic control over the alleged conspiracy.

Since the investigation was complete and trial delays were substantial, continued incarceration of such accused was considered disproportionate and punitive.

How the Law Defines a ‘Terrorist Act’ ?

Statutory Definition under UAPA

Section 15 of the UAPA defines a terrorist act as one committed with intent to:

• Threaten India’s unity, integrity, security, or sovereignty, or
• Strike terror among the people

It lists specific violent means (explosives, firearms, etc.) and includes a broad residual clause — “or any other means.”

Prosecution’s Argument

The prosecution argued that planned, synchronised road blockades choking arterial roads could fall under “any other means”, even without conventional weapons, because of their intended impact, scale, and consequences.

Defence’s Stand: Protest Is Not Terror

The defence argued that:

• Road blockades are a recognised form of democratic protest
• “Any other means” must be read narrowly, limited to violent instruments

Supreme Court’s Interpretation

The Court rejected a narrow reading and held that:

• The weapon is not decisive; intent, design, coordination, and effect are crucial
• Systematic disruption of civic life, if strategically planned, may amount to a terrorist act
• Timing such acts with international events (e.g., Donald Trump’s visit in 2020) strengthens prima facie inference of intent

This marks a broadened judicial understanding of terrorism, extending beyond traditional violence to include calibrated mass disruption.

Bail Restrictions under Section 43D(5) of UAPA

Section 43D(5) bars bail if accusations appear prima facie true.

• The Court found sufficient prima facie material (witness statements, chats, meeting records) against Khalid and Sharjeel Imam
• Hence, the statutory bar on bail applied fully

For the co-accused with limited roles, the bar was held not to operate with equal force.

Prolonged Incarceration and the Bail Question

Argument Based on Article 21

All accused highlighted:

• Continuous custody since 2020
• Trial still at the charge-framing stage

They relied on Union of India v. K.A. Najeeb (2021), where the Supreme Court held that constitutional courts may grant bail under UAPA to prevent violation of Article 21 if trials are indefinitely delayed.

Supreme Court’s Clarification on K.A. Najeeb

The Court clarified that:

• K.A. Najeeb is not a mechanical rule
• Delay is a trigger for scrutiny, not an automatic override of statutory bail bars

Given:

• Over 1,000 documents
• 835 witnesses
• Defence-raised procedural objections

The delay could not be attributed solely to the prosecution.

Balancing Liberty and Security

• For alleged masterminds: gravity of offence outweighed delay
• For facilitators: continued custody became punitive

Thus, bail was granted selectively.

Wider Legal and Constitutional Implications

• Sets precedent for hierarchical culpability in conspiracy cases
• Expands the scope of what may constitute terrorism
• Reinforces judicial deference to legislative intent in anti-terror laws
• Raises concerns about criminalisation of protest and chilling effect on dissent