Between Method And Outcome: Did SC Reclaim Dynamic Interpretation In Khalid And Imam's Case?
The constitutional guarantee of liberty serves as both a moral compass and a guiding principle for any functioning democracy. Yet, Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) reveals a persistent tension between state security and individual freedom. This provision severely restricts judicial discretion to grant bail, forbidding it where there are “reasonable grounds” to believe the accusations are “prima facie” true. In practice, this has made bail nearly impossible in many UAPA cases. Umar Khalid's bail was rejected by the Delhi High Court in 2025. Arrested in September 2020 for alleged involvement in the Delhi riots, he has been in judicial custody since. The Delhi High Court upheld the prosecution's claim that the riots were “premeditated, well-orchestrated,” citing his alleged inflammatory speeches, and rejected bail despite Khalid's prolonged incarceration, reasoning that the trial was proceeding “at a natural pace.” On 5th January 2026, the Hon'ble Supreme Court (SC) delivered its judgment, denying bail to Umar Khalid and Sharjeel Imam whilst granting bail to five co-accused with stringent conditions.
The UAPA's stringency reflects a historical trajectory of preventive legislation in India. Laws such as the 1908 Criminal Law Amendment and the 1967 UAPA reveal a continuity from colonial practices, where security imperatives often subordinated political dissent and individual liberty. Amendments to Section 43D(5) intensified this legacy, prioritising suspicion over proof and fear over reason. When the state asserts that security justifies liberty's curtailment, the judiciary's adoption of this assumption as an interpretive orthodoxy renders the bail provision corrosive. The problem lies not only in the text but in an interpretive culture that equates fidelity to Parliament with abdicating judicial judgment.
William N. Eskridge Jr. in his 1987 article and 1994 book on dynamic statutory interpretation argued that statutes must be interpreted not only according to their text or original intent but also in light of their subsequent evolution within legal, constitutional, and social contexts. He identified three interrelated perspectives guiding statutory meaning: textual, historical, and evolutive. Applied to Section 43D(5), this raises a critical question: can a bail provision remain static when the very meaning of liberty has evolved? Introduced in 2008 as a terrorism response, the clause restricting bail if the accusations are prima facie true was born of fear, but courts today must consider whether continuing to read it rigidly aligns with values of Article 21 enshrined under Constitution Of India. To interpret it in a manner consistent with liberty rather than fear.
Judicial interpretation has gradually rendered Section 43D(5) nearly absolute. In National Investigation Agency v. Zahoor Ahmad Shah Watali, the SC ruled that at the bail stage, courts should not assess evidence credibility but only verify whether the prosecution's material, taken as true, supports the accusation. This converted judicial discretion into mechanical verification: once charges allege participation in a “terrorist act,” the court cannot question the evidence. What was intended as a procedural safeguard has become an instrument of near-automatic denial. The SC later held, however, that the Watali judgment is not a precedent to deny bail to undertrial in long custody with no end in sight of trial. Dynamic reading of statutes offers such correctives.
Literalism ignores law's social purpose. Cardozo warned that law must be a living, vital force, not a fossilized command. Legal realism conceives interpretation as an interaction among legislative directives, normative principles, and policy. Applied to Section 43D(5), this means courts must mediate between statutory rigidity and constitutional morality. Dynamic interpretation is not rebellion against Parliament; it reaffirms constitutional supremacy over transient politics.
Lawrence Solan recognised that criminal statutes are subject to stricter canons, including fair notice and separation of powers, limiting judicial expansion. Yet he also argued that measured dynamism is legitimate where static interpretation would produce injustice or incoherence. In his essay Should Criminal Statutes Be Interpreted Dynamically? (2002), he described this as context-bound dynamism: permissible only when strict fidelity would amplify abuse or contradict the rule of law. Literalism equates to interpretive abdication when applied to Section 43D(5). The bail clause must not be transformed into a mechanism of pre-trial punishment. Solan authorizes dynamic reading in precisely such environments, where social and legal contexts have shifted and static interpretation perpetuates coercive power. Fair notice protects against expanded liability but does not prevent interpretive recalibration that limits liberty deprivation. Courts using dynamic interpretation to curb state overreach would therefore be upholding legality, not undermining it.
The evolution of “prima facie” demonstrates another interpretive failure. Historically, it signified minimal sufficiency to proceed, leaving determination of truth to later scrutiny. In Gurwinder Singh v. State of Punjab (2024), the SC treated it as near-conclusive, effectively equating prima facie evidence with proof sufficient to deny bail. This collapsed the distinction between accusation and conviction. Dynamically interpreted, “prima facie” would retain procedural humility, indicating that preliminary evidence invites, but cannot foreclose, deliberation. Solan emphasizes that legitimate interpretation derives from contextual awareness, reflected in judicial sensitivity to a law's evolving use and constitutional wisdom, backed by commitment to principles like proportionality and due process. When Section 43D(5) produces indefinite detention and presumptive guilt, dynamic interpretation recalibrates it: “reasonable grounds” becomes probative plausibility, and “prima facie true” becomes tentative sufficiency, consistent with constitutional equity.
Statistics are enough to highlight the problem. Between 2014 and 2022, fewer than three percent of over 8,700 UAPA cases resulted in conviction. The preventive logic of the statute operates as punishment itself. When liberty is curtailed based on accusation alone, courts bear a duty of remedial elasticity: interpreting “reasonable grounds” requires checking coherence, minimal reliability, and legitimate investigative purpose. Similarly, “prima facie true” should be understood as plausible on preliminary scrutiny, not asserted authority. The statute allows this flexibility; what is missing is judicial imagination. Dynamic interpretation matters because the bail provision is where constitutional liberty confronts state security. Static readings privilege fear over justice while dynamic readings balance the two through reasoning. The aim is not to trivialize terrorism but to prevent anti-terror laws from trivializing justice. Article 21 itself has expanded through interpretation to encompass dignity, privacy, and procedural fairness. If liberty can grow, statutory phrases governing bail must not remain frozen.
Dynamic interpretation mediates legislative intent with constitutional principle. Judges applying it consider evidence quality, investigative stage, trial delay, and proportionality between detention and alleged offense. Bail jurisprudence then becomes realistic and humane. Under the current approach, accused persons may languish in custody for years while statutory prohibitions are mechanically enforced. This satisfies formal legality but violates constitutionalism. Liberty cannot depend on investigatory convenience; no procedure, however lawful in form, must produce unreasonable effects. Dynamic reading gives this principle tangible application.
The SC's judgment denying bail to Umar Khalid and Sharjeel Imam reveals the failure of dynamic interpretation despite its rhetorical framework. The Court explicitly reaffirmed that UAPA bail is governed by Section 43D(5)'s prima facie bar, set out a tightly cabined inquiry, and cautioned against mini-trials. This was methodical and restrictive, not dynamically rights-expansive, however. The judgment rejected reading delay as a “trump card” and insisted on proportional balancing with a strong statutory tilt, which signals an observable restraint over a dynamic, liberty-forward outlook.
The most significant “dynamic” move the SC makes is actually to cut against liberty: It expansively construes “terrorist act” under Section 15 to include disruption of essential supplies “by any other means,” covering conduct destabilising civic life even without immediate physical violence. This expansion is then used to deny bail to Umar Khalid and Sharjeel Imam as “architects”. We see broadening of the offence's scope to strengthen the statutory embargo, not to protect liberty. The dynamism is visible only in granularly distinguishing masterminds from facilitators and grant of bail to five co-accused based on proportionality and necessity. This role-differentiation is calibrated and accused-specific, which is better than mechanical denial. But these outcomes still operate within the same strict statutory framework with heavy conditions.
The bottom line is clear. The judgment's architecture is conservative on law whilst operationally flexible in differentiating roles. This is not a dynamic interpretive turn expanding constitutional liberty at the bail stage. It is a disciplined, statute-led approach with limited, role-based relief. Courts remain trapped in interpretive orthodoxy, treating statutory text as immutable command rather than mediating it through constitutional principle. The Court pays lip service to heightened scrutiny and accused-specific analysis but defaults to prosecution verification. Dynamic interpretation would require asking whether the evidence plausibly supports the charges, whether alleged conduct falls within constitutional boundaries of dissent, and whether continued detention remains proportionate. The judgment asks none of these questions meaningfully for Khalid and Imam.
Critics may claim dynamic interpretation invites judicial overreach. The real excess, however, is mechanical literalism, which transforms bail provisions into instruments of indefinite detention. Dynamism disciplines both sides: judges justify reasoning, and the state substantiates claims. It converts discretion from arbitrariness into accountability. While one might argue that criminal law exceeds judicial epistemic capacity, interpretation has always involved meaning-making shared between legislature and judiciary. Courts can and must weigh delays, charge gravity, and prejudice to the accused. Bail is not a favor but a constitutional duty; judges must ensure detention is rational, preserving the statute's security purpose while restoring moral authority.
Ultimately, dynamic interpretation keeps law alive. Statutes created in fear often forget that democracies evolve. The UAPA's bail clause emerged from crisis, but crises cannot define liberty forever. Courts must interpret to constitutionalize, not memorialize, fear. If Indian courts adopt this approach, legality and liberty can coexist: the bail provision remains stringent but no longer blind, its severity tempered by scrutiny, its purpose preserved by proportionality. Obedience gives way to understanding, text to purpose, and legality to justice. Section 43D(5) would retain strength but gain reason, ensuring liberty is not sacrificed at the altar of security.
The Authors Are Dr. KVK Santhy, Professor of Law, NALSAR University Of Law, Hyderabad And Bhavya Is A Lawyer At Delhi High Court ↑
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