This editorial “Is Court letting down its mandate on liberty?”, published in The Indian Express on 6th Jan 2026, critically examines the SC’s approach to bail and prolonged pre-trial incarceration, raising concerns about judicial delay, erosion of the presumption of innocence, and the weakening of constitutional safeguards for personal liberty.
Core Issue
- The Supreme Court’s refusal to grant bail to Umar Khalid and Sharjeel Imam, despite bail to other accused in the 2020 Delhi riots cases, raises concerns about the judiciary’s approach to personal liberty, delay, and constitutional responsibility.
Bail, Delay, and Liberty
- Continued incarceration for over five years without trial conclusion converts detention into a holding pattern without constitutional endpoints.
- Treating the absence of a concluding stage as a ground to deny bail risks normalising prolonged detention.
- Reliance on allegations of grave offences allows indefinite imprisonment without adjudication.
- Courts increasingly conduct detailed evidentiary assessments at the bail stage, relying on untested charge-sheets and witness statements. This blurs the distinction between bail proceedings and trial, undermining procedural safeguards.
- Liberty decisions based on untested material reduce the presumption of innocence to a formality.
Structural Context of Criminal Justice
- Prison Statistics India 2022 shows over 75% of India’s prison population consists of undertrials.
- Many undertrials remain incarcerated for periods longer than maximum sentence for their alleged offences.
- When incarceration follows political activity and trials are delayed indefinitely, the line between lawful prosecution and punitive detention becomes thin.
- Emphasis on “stage of proceedings” implies that delay weakens liberty claims, shifting the cost of systemic failure from the State to individuals.
Constitutional Principle of Bail
- Bail does not mean exoneration; it reaffirms that the criminal process is not meant to punish before guilt is established.
- Denying bail after prolonged incarceration risks pre-trial punishment.
- Partial relief to some accused cannot substitute for principled and consistent constitutional reasoning.
Beyond Editorial
UAPA & Bail Framework
- Unlawful Activities (Prevention) Act, 1967: An anti-terror law aimed at preventing activities threatening the sovereignty and integrity of India.
- Key provisions relevant to bail
- Section 15: Defines a terrorist act; courts have adopted an expanded interpretation of this provision.
- Section 43D(5): Contains the reverse-bail clause, mandating denial of bail if the court finds the accusations prima facie true.
- Section 2(o): Defines unlawful activity, forming the basis for invoking UAPA provisions.
- Departure from ordinary bail law: The standard principle of bail, not jail under the Criminal Procedure Code (CrPC) is reversed, as the presumption shifts against the accused under UAPA
What the Supreme Court Did - “Hierarchy of Participation”
- The Court classified the accused based on role-level in the alleged conspiracy.
- Core or higher-order participants were denied bail.
- Peripheral or lower-order participants were granted bail with conditions.
- The Court held that at the bail stage, it examines only prima facie linkages, not proof or evidentiary conclusiveness.
- Critique flagged by commentators
- The hierarchy of participation is inferred before trial, without testing evidence through cross-examination.
- This raises fairness concerns, as role attribution precedes adjudication of guilt.
Court’s Interpretation of “Terrorist Act” (Section 15, UAPA)
- The Court accepted that a terrorist act need not involve overt physical violence.
- Acts such as threatening disruption of essential services or social order were held to fall within the scope of Section 15.
- This reading widens the preventive ambit of the UAPA.
- Risk flagged
- Such an expanded interpretation may chill legitimate protest and dissent.
- It enhances the State’s capacity to justify prolonged pre-trial incarceration, particularly in political or protest-adjacent cases.
Implications for Criminal Justice System
- For Trial Courts: Grant of bail to five accused signals the need to rationalise witness lists, avoid procedural delays, and commence trials expeditiously.
- For Future UAPA Cases: The “hierarchy of participation” may emerge as a new bail-screening doctrine. An expanded reading of Section 15 strengthens the preventive detention logic within UAPA jurisprudence.
- For Democratic Protest Space: Raises concerns of over-criminalisation of mobilisation networks, potentially shrinking the space for lawful protest and dissent.
|
Contact Us 
New Batch : 9555124124/ 7428085757 
Tech Support : 9555124124/ 7428085757