When Prolonged Incarceration Fails The Bail Test

In Judgment denying bail to Umar Khalid and Sharjeel Imam, a Bench of the Supreme Court comprising Justice Aravind Kumar and Justice N.V. Anjaria has not merely rejected two individual applications. It has articulated a new grammar for bail under the Unlawful Activities Prevention Act, one that recalibrates how prolonged incarceration, prima facie scrutiny, and judicial restraint are to be understood.

The Judgment runs into 142 pages, and its length itself signals the Court's intention to go beyond a routine bail rejection. The Bench repeatedly emphasises that it is conscious of the gravity of depriving personal liberty. It acknowledges that the incarceration of the two accused has been substantial. Yet, it draws a firm line. Substantial, it says, does not automatically translate into constitutionally impermissible.

This distinction is critical. Until now, constitutional courts had treated prolonged pre trial detention not as a mere factual circumstance, but as a constitutional warning sign. In earlier cases, the Supreme Court had held that even under stringent anti terror statutes, the rigours of bail must loosen where trials show no sign of concluding within a reasonable time. In this order, however, the Bench introduces a further filter. Delay alone is not enough. It must cross an undefined threshold.

The judgment does not specify what this threshold is. Instead, it operationalises it procedurally. The accused are told they may renew their bail plea after one year. This transforms constitutional scrutiny into a timed exercise. Liberty is no longer assessed in the present tense, but deferred into the future. The implication is stark. Five years of incarceration may be troubling, but it is not yet intolerable.

Equally significant is how the Bench structures its scrutiny under Section 43D(5) of the UAPA. The provision requires courts to deny bail if the accusations appear prima facie true. Justice Kumar and Justice Anjaria are careful to clarify that this does not exclude judicial scrutiny altogether. They emphasise that courts must still examine whether the material discloses a prima facie offence and whether the role attributed to the accused has a reasonable nexus with the alleged crime.

On paper, this appears to reaffirm judicial oversight. In practice, the order shows how narrow that oversight has become. The Bench relies extensively on the prosecution's characterisation of roles, planning, and strategic direction. It accepts that Khalid and Imam occupied what it describes as a central and formative position, while the remaining five accused were placed lower in what the Court itself terms a hierarchy of participation.

This hierarchy is not derived from tested evidence. It emerges from charge sheets, statements, and investigative narratives. The Bench is aware that it is operating at the bail stage and cautions itself against conducting a mini trial. Yet, in classifying the accused and assigning relative weight to their alleged involvement, the Court effectively performs a function that is ordinarily reserved for trial.

The consequence of this approach is twofold. First, it allows courts to differentiate between accused persons in the same case based on degrees of alleged involvement, even before charges are framed. Second, it makes such differentiation decisive for bail, irrespective of the length of incarceration.

The order is also notable for how it treats the definition of a terrorist act under Section 15 of the UAPA. Justice Kumar and Justice Anjaria rely on the breadth of the statutory language, particularly the phrase any other means, to uphold the prosecution's case at the prima facie stage. The provision, they note, does not restrict terrorist acts to the use of bombs, firearms, or explosives. Its ambit extends to other methods capable of threatening unity, integrity, security, or public order.

This acceptance is consequential. The phrase any other means was introduced into Section 15 through the 2008 amendments, following the Mumbai attacks. As several commentators have noted, this insertion fundamentally altered the nature of the offence by severing the definition of terrorism from conventional markers of violence. The present order does not question this expansion. It applies it.

By doing so, the Bench strengthens a prosecutorial pathway that allows acts not traditionally associated with terrorism to be brought within the statute's fold, at least for the limited purpose of denying bail. The Court does not finally rule on guilt. But by holding that the accusations satisfy the prima facie standard, it ensures that the accused remain incarcerated while the trial awaits commencement.

The judgment also clarifies that prolonged incarceration, by itself, cannot override the statutory embargo imposed by Section 43D(5). Gravity of offence, statutory framework, role attributed to the accused, and prima facie evidentiary value must all be weighed together. This formulation narrows the escape route that earlier benches had carved out by emphasising delay and denial of timely trial.

In effect, the Bench elevates statutory rigour over temporal considerations. Delay becomes relevant only when it is extreme enough to shock the constitutional conscience, a point that remains undefined and elastic.

The impact of this reasoning on the conduct of future trials under the UAPA is significant. Trial courts are likely to treat this order as authority for engaging in role based differentiation at the bail stage. Prosecutorial narratives of centrality and planning may acquire disproportionate weight. Accused persons who are placed higher in this judicially recognised hierarchy may find bail structurally out of reach, irrespective of how long trials are delayed.

The order also reinforces the normalisation of prolonged pre trial detention under anti terror laws. By holding that five years of incarceration does not yet trigger constitutional override, the Court resets expectations. Delay, even when acknowledged, loses much of its force as an independent ground for bail.

What emerges, then, is not merely a denial of bail, but a consolidation of a particular judicial approach to UAPA cases. It is an approach that privileges statutory text over constitutional anxiety, prima facie assessments over evidentiary testing, and prosecutorial sequencing over temporal fairness.

The Bench of Justice Aravind Kumar and Justice N.V. Anjaria has not expanded the statute. Parliament has already done that. What it has done is to apply the expanded statute with a level of deference that leaves little room for liberty to assert itself at the pre trial stage.

The long term effect of this order will not be measured only by the fate of two accused persons. It will be felt in trial courts, where bail hearings will increasingly resemble preliminary adjudications of culpability, and where delay will cease to function as a meaningful constitutional counterweight.

When liberty is made to wait for a threshold that has no clear contour, the risk is not merely prolonged incarceration. It is the gradual erosion of bail as a constitutional safeguard, replaced by a regime where detention becomes administratively tolerable and judicially routine.

The Author Is A Lawyer Based In Delhi