With the rejection of their bail pleas, Umar Khalid, Sharjeel Imam and a few other political prisoners continue to be victims of Indian legal system’s failure. In Gulfisha Fatima & Others (2026), after considering the “individualised roles” allegedly played by the seven accused, the court chose to decline bail to Khalid and Imam while granting bail to the other five. Pertinently, there is no allegation of any overt act of violence involving them. Even according to the Supreme Court, “the material relied upon against them is predominantly in the nature of speeches, meetings, digital communications and alleged strategic deliberations” regarding agitations against the Citizenship Amendment Act.
The judgement negates the bail jurisprudence evolved by the court itself in a line of cases. It repelled the argument that prolonged incarceration without trial violates Article 21 of the Constitution and, therefore, is a ground to release the accused on bail. The accused in this case were in jail for five and a half years. The court relied on the recent judgement in Saleem Khan (2025), where the two-judge Bench upheld a Karnataka High Court verdict that declined bail to one accused charged under the Unlawful Activities (Prevention) Act while granting it to another. The court, in that case, simply endorsed the Karnataka judgement without laying down any legal principle.
A constitutional view on the issue was taken by a three-judge Bench in K A Najeeb (2021). In that case, the court held that a statutory restriction like Section 43D(5) of the UAPA per se does not oust the ability of constitutional courts to grant bail on the ground of violation of fundamental rights due to long incarceration without trial. Section 43D(5) contains an embargo against granting of bail if there are reasons to believe the accusation prima facie.
Another Supreme Court Bench, in Sheikh Javed Iqbal vs Uttar Pradesh (2024) agreed with the law laid down in Najeeb. It said that the seriousness of the alleged crime should prompt the state to expedite the trial, not to delay it. The court even said: “When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused undertrial on the ground that the charges are serious.” Thwaha Fasal (2021) and Athar Parwez (2024) also followed the constitutional view expressed in Najeeb. In Javed Gulam Nabi Shaikh (2024), too, the court said that prosecution cannot rely on the seriousness of an alleged crime when the trial is inordinately delayed.
In the latest case, the court noted that, “Prolonged incarceration is a matter of serious constitutional concern and carries great weight.” Yet, it denied bail to Khalid and Imam with an unfathomable claim that “this approach does not dilute Article 21” on the right to life and personal liberty. It does exactly that. Again, the issue of delay was not the sole ground that Khalid and Imam urged; the reliance was equally on the fragility of the prosecution story.
The two-judge Bench said that the three-judge Bench’s judgement in Najeeb “must be understood as a principled safeguard against unconscionable detention”, yet somehow reached the opposite conclusion on Khalid and Imam. The two-judge Bench is wrong and unfair in bypassing the spirit of the three-judge Bench judgement of 2021 that has been reiterated in several subsequent judgements. Instead, it opted to accept a contrary view laid down in cases such as Gurwinder Singh (2024) and Dayamoy Mahato (2025). This exposes a harsh legal reality in India—a selective use of draconian laws by the executive is often followed by a selective use of precedents by judges.
The judgement legitimises an executive that suppresses dissent and public protest. Activities like road blockage, which could be counted as an offence only under conventional laws, has been interpreted as an act of terrorism. The meaning of Section 15 of the UAPA, which defines ‘terrorist act’, has been expanded by the court by making it elastic and overbroad.
Even after taking note that the speeches in contention were explicitly against violence, the court refused to deal with it. Instead, it said, “Continued detention of those alleged to be the architects of the conspiracy may be required to safeguard broader security interests and deter future acts.” This will precisely mean that mere allegation of a terrorist act will equip the State to incarcerate dissenters for an indefinite period without trial. To deny bail, the court evolved phrases such as “conceptual involvement”, “ideological drivers” and “command over alleged conspiracy”. In the absence of examination of evidence, these generic phrases fail to support the conclusion. The vocabulary is vague and abstract, and the reasoning almost hollow.
The judgement does not convince one about the alleged respective roles of the accused and much less about the difference between them. According to the verdict, “The chargesheets attribute to them the role of formulating the protest strategy, including the alleged transition from sit-in demonstrations to chakka jams, selection of locations, and articulation of the broader political objective sought to be advanced.” This indicates a trend where the court, which Alexander Hamilton described as the least dangerous branch of the State, is abetting the executive, the most dangerous branch. No other Supreme Court judgement in recent history has penalised political dissent by conceiving it as a terrorist act with so much verbosity, without any material support.
The court did not show the courage of even asking the State to finalise the trial within a specified time. It was not perturbed by a situation where the process itself becomes the punishment, when hundreds of witnesses in the case are yet to be examined.
Article 19 rights are directly linked to India’s freedom struggle. These include the right to free speech and expression, to peaceful assembly, and to form associations. These constitutionally-guaranteed freedoms are practically nullified by the court that is supposed to protect them. That it set free five of the accused does not dilute the deep wound it inflicted on the idea of personal liberty. This is clearly another ADM Jabalpur (1976) moment for the Supreme Court, which explicitly abetted the infringement of fundamental rights. One wishes the court would learn from its own past.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)