In the Supreme Court's sensational
verdict in the case of Umar Khalid[1] on 5th
January, 2026, the Court, among other things, has dealt with a very critical
question of law- can prolonged incarceration embedded in the mandate of
Article 21 be a ground for bail? If dissected further, this question
branches out into other underlying contentions, such as "the
Constitutional guarantee of life and liberty versus statutory embargo on
bail," and, in case one of them prevails over the other, will it apply
mechanically to all other cases, in which similar contentions are raised?
I. Article 21 versus Section 43D(5):
The Constitutional–Statutory Tension
The SC demystified this area of indeterminacy:
although prolonged incarceration violates the mandate of Article 21[2], the
same cannot be the sole ground to grant bail. In light of the statutory bar set
by Section 43 D (5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA)[3], an
inordinate period of custody has to be assessed along with other factors to
enlarge bail. The multi-factor analysis requires a careful examination of the
facts, the grave nature of the offence the accused is charged with and the
evidence presented against the accused. Does that place a Statute above the
Constitution? The Court at the very outset clarified that its pronouncement
cannot be assumed as any declaration as to the comparison between the
Constitution and a Statute. The question of law that it was adjudicating upon
was more constricted – whether delay in trial and extended incarceration may
constitute valid grounds for bail in prosecutions under the UAPA? However,
for a delay to be held as a ground to grant bail, it has to be of such a
magnitude that it breaches the permissible limits or if it is highly
disproportionate to the offence alleged.
In Union of India v. K.A. Najeeb[4], the Court
had held that the guarantee of personal liberty cannot be rendered ineffective
by the operation of statutory restraints. In Gurwinder Singh v. State of
Punjab[5], the
Court prohibited the application of prolonged custody as the ground for bail in
cases involving serious offences. The UAPA holds a special and distinct
position in the community of "statutes" as it governs offences that threaten
the sovereignty, security and integrity of the state. Therefore, in offences of
such a gravity, delay cannot be a bar to the application of a statutory rule to
deny bail.
II. Individualised Assessment and
the Rejection of Blanket Bail Principles
When it comes to the mechanical
application of this rule, the Court outright rejected it. Bail denial under the
UAPA cannot operate as a blanket rule across all prosecutions. The deciding
factor is the degree of participation by the accused. This degree may vary from
merely partaking in certain incidental acts to a strategic or organisational
role played by the accused. This is reflected by the Court's decision to grant
bail to Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan and
Shadab Ahmed on the ground that their roles stopped short of strategic
centrality, and to deny the same to Umar Khalid and Sharjeel Imam on the ground
that they played a central, formative and architectural role in the conspiracy.
The seriousness of the allegations cannot be the sole reason for detention if
the person does not pose a threat to the administration of justice. Accused
persons whose role was ancillary ought to be released once investigations
concerning them are concluded. Pre-trial detention that extends beyond 5 years
clearly takes the shape of a punishment, rather than a preventive restraint,
and thereby stands in a clear violation of Article 21.
III. Liberty, National Security, and
the Limits of Delay as a Ground for Bail
Article 21 involves competing interests. On one hand is the personal liberty of the accused persons and on the other, stands the State’s obligation to secure the life and liberty of the larger community and safeguard public order. The balance is sustained even when the constitutional interest of an individual is bypassed to preserve the rights and interests of the masses. Thus, the statutory embargo on the grant of bail, even if it impinges upon the accused persons’ liberty, is within the constitutional mandate as it enables the protection of the community at large. This balance requires an individualised assessment of the necessity to detain a person before trial. This is the primary reason why, though all the appellants were implicated in the same offence, some were granted bail while two others were not. This is because of the difference in the hierarchy of roles played by them. Even in cases where continued detention is flagged as a ground, the Courts have to take a step further to assess if the same is because of the inherent complexity of the case or because of the conduct of the parties, including that of the accused.
The paramountcy of the right to liberty
and its protection from indefinite detention is well recognised under
Constitutional frameworks around the world and international covenants[6]. The
Court consciously refrained from elevating mere passage of time to a
determinative factor capable of overriding a statutory bar on bail in cases
implicating national security. Thus, unduly extended detention, not in
isolation but in conjunction with other relevant factors, may or may not
justify the grant of bail.
About the Author
TIYASHA CHAKRABORTY
2nd Year Law Student at SLS Pune
The views expressed are personal to the author. Publication on Nib & Notion does not imply endorsement. Nib & Notion assumes no liability for reliance on the information provided.
[1] Gulfisha Fatima v. State (Govt. of NCT of Delhi),
2026 INSC 2 (Sup. Ct. Jan. 5, 2026) (Crim. App. arising out of SLP (Crl.) Nos.
13988–15335/2025).
[2] INDIA CONST. art. 21.
[3] Unlawful Activities (Prevention) Act, No. 37 of 1967,
§ 43D(5) (India).
[4] Union of India v. K.A. Najeeb, AIR 2021 SC
712.
[5] Union of India v. K.A. Najeeb, AIR 2021 SC
712.
[6] International Covenant on Civil and Political Rights,
Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).
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