Supreme Court's Denial Of Bail Under UAPA And The Constitutional Criminalisation Of Dissent

On 5 Jan 2026, the Supreme Court of India (SC) denied bail to Umar Khalid and Sharjeel Imam, while granting bail to the other five co-accused. They were booked for the conspiracy linked to the February 2020 Delhi riots during the Citizenship Amendment Act Protests that led to 53 fatalities and widespread destruction of property. They were charged under Sections 13 and 16-18 of the Unlawful Activities (Prevention) Act, 1967, as well as multiple offences under the Indian Penal Code.

The UAPA was initially formulated to regulate unlawful associations. Eventually, it has become one of the most effective tools for pre-trial detention in India's criminal justice system. In 2004, the law was extended to have a wide definition of “terrorism”; in 2008, almost the entire law was amended with a near proscription on bail in Section 43D(5); and in 2019, the law was even extended to permit the State to declare specific individuals, rather than just Organisations, as terrorists.

From protest to “terrorism”

The recent ruling by the SC to deny Umar Khalid and Sharjeel Imam the right to bail again demonstrates how UAPA is being misapplied not to punish terrorism, but to punish dissidents.

Khalid has been in prison since September 2020. Although he had not lived in Delhi at the time of violence and there had never been any claim that he engaged in or encouraged certain acts of violence, courts have still, on numerous occasions, referred to him as the “intellectual architect” of a premeditated conspiracy. Throughout the proceedings, adjudication has been based not so much on actions taken but on innuendo: WhatsApp group memberships, movement-protected witnesses, protest speeches and phrases like chakka-jam and inquilab have been interpreted as potentially violent, yet Khalid has explicitly asked people involved to remain non-violent in the same speech. Protest weapons that are usually applied throughout India, such as farmers' movements or opposition mobilisation in India, have been re-purposed here to denote signs of terrorism. This subjective bias is constitutionally frightening. Section 15 of UAPA refers to 'terrorist acts' as an act that is meant to cause fear of unity, integrity, security or sovereignty of India through acts of violence or any other way. However, in the case of Khalid, the courts have practically collapsed the protest mobilisation into terrorism without demonstrating the acts and violent intent. This implicates the right to freedom of speech and expression enshrined under Article 19(1)(a) and (b) into criminal suspicion.

The Bail bar as a tool of punishment

Custody is the new real force of UAPA today and not conviction. Section 43D(5) requires bail to be denied in cases where the allegations are prima facie true, but it does not specify the criterion. In NIA v. Watali (2019), the Supreme Court ordered courts to consider prosecution material as presented at the bail phase, effectively reducing judicial review. Although K.A. Najeeb (2021) acknowledged that constitutional courts could still issue bail in cases where the term of stay in prison becomes disproportionate, this tenet has been more of a figment.

Khalid's jail term has already surpassed five years, and the trial has yet to begin. The number of witnesses has reached almost a thousand. Time lag has now become institutional rather than accidental. However, the delay has been considered by the courts to be a factual issue, rather than a constitutional harm.

Consequently, the procedure of setting bail is becoming increasingly like a mini-trial: the prosecution's version is reenacted in court, but there is little to no chance for the accused to challenge it. In this type of system, the refusal of bail is the actual penalty, and the trial, had it ever been concluded, is secondary. This contradicts the rights enshrined in Articles 21 and 22, which state that no individual shall be deprived of liberty without being subjected to a just, fair, and reasonable procedure, and the right against being held arbitrarily, as outlined in Article 22.

The problem of selective severity

Parity, the principle that those on equal footing should be treated equally, has also been broken.

In 2021, the Delhi High Court released Devangana Kalita and other people on bail by closely distinguishing between protest activity and terrorist activity and concluding that even violent protest methods fall short of Section 15, without causing acts of violence. The Bombay High Court, through Iqbal Ahmed, also demanded concrete evidence in UAPA cases. However, in the case of Khalid, such behaviour has been considered more serious, not because the acts are different, but because of the political context. This raises disturbing concerns under Article 14, issues of equality before the law.

On a larger scale, the application of UAPA has revealed acute disparities: those journalists, activists, lawyers, and minority protest leaders are sentenced to long imprisonment, whereas those involved in the inflammatory speech and connected to the ruling elites are released quickly. Law ceases to be a neutral tool; more so, it is a discriminating political discipline tool.

A pattern, not an aberration

Khalid's case is not isolated. The scope and ambiguity of the UAPA are currently subject to challenge before the Supreme Court, including petitions challenging the 2019 amendment, which permits a person to be designated as a terrorist individually, and cases challenging the criminalisation of holding a particular writing or ideology. According to the civil-society reports and the analysis based on the NCRB, the conviction rates are approximately 3% compared to the arrest based on UAPA, which means that the major purpose of the law is not to convict, but to detain.

The human cost is visible. The death of Father Stan Swamy in custody is a good reminder that, under UAPA, even an accusation is punishment. Global organisations have been raising eyebrows on occasion. Amnesty International has preached the ongoing imprisonment of Khalid as an attack on free expression and freedom of assembly. The UN High Commissioner has called upon India to avoid applying anti-terror legislation against dissidents, stating that the method of invoking the anti-terrorism laws against the dissidents flouts the presumption of innocence as well as the right to fair trial provided by international law.

What is at stake?

This judgment appears to be an exercise in balancing freedom and security. However, the impact in practice of this is to naturalise a system where protest is now dealt with as a possible form of terrorism, bail is an extraordinary concession, and a long prison sentence is a prescription that can be accepted constitutionally.

This is a reversal of the constitutional order. Democracy cannot work where criticism is repressed by a terror statute, where freedom is conditional on prosecutorial discretion, and where the process itself comes to be penal. Whether Umar Khalid is innocent or guilty is no longer a question; the real issue is whether he should be tried, which may not happen at all. The constitutional issue is whether India is ready to embrace a system where the laws designed to deal with terrorism have been turned into a method of dealing with a political dispute.

In case such a transformation is permitted to proceed, UAPA will cease to be a law on terror. It will be a terror law, not directed against those who endanger the republic, but against those who challenge it.

The Author Is An Advocate Practicing At Delhi High Court. Views Are Personal