Conspiracy and the limits of bail

The Supreme Court’s refusal to grant bail to Umar Khalid and Sharjeel Imam, while extending relief to five other accused in the 2020 Delhi riots conspiracy case, has reopened a familiar but unresolved question in Indian criminal law. How should courts reconcile a constitutional commitment to personal liberty with a statutory framework that deliberately restricts bail in the name of national security?

The immediate answer offered by the Court lies in the structure of the Unlawful Activities Prevention Act. Section 43D(5) creates a distinct bail regime, one that departs from ordinary criminal law by requiring courts to deny bail where reasonable grounds exist for believing that the accusation against an accused is prima facie true. This threshold does not require proof, nor does it permit a weighing of evidence. It asks only whether the prosecution’s case, taken at face value and read with the chargesheet and case diary, crosses a minimum plausibility bar.

In applying this provision, the Court rejected the argument that prolonged incarceration, by itself, displaces the statutory embargo. Delay, the order states, does not operate as a trump card. This formulation clarifies an important point of law. Preventive detention under UAPA is not time bound in the manner of ordinary criminal custody, and courts are not authorised to override Parliament’s bail restrictions merely because proceedings have been slow. The inquiry remains anchored in the statutory threshold.

What distinguishes this order from several earlier bail refusals under UAPA is the Court’s insistence on differentiation. The judgment repeatedly states that all accused do not stand on the same footing. Bail was granted to five individuals on the ground that the prosecution material attributed to them a limited, localised, or subordinate role. In contrast, Khalid and Imam were treated as occupying a qualitatively different position, marked by alleged involvement in planning, mobilisation, and strategic direction that extended beyond episodic participation.

This differentiation is central to the Court’s reasoning. Rather than treating the conspiracy charge as a collective attribution, the Court accepted the prosecution’s claim of a hierarchy of participation. The relevance of this approach is not confined to the present case. It signals that UAPA does not compel uniform outcomes, even where multiple accused are booked under the same provisions. Bail analysis, according to the Court, must remain individualised.

Equally significant is the Court’s treatment of the nature of conduct alleged to attract UAPA. The order indicates that organised and deliberate disruption of civic life, when alleged to be part of a coordinated strategy affecting public order and security, can fall within the statute’s scope even in the absence of direct physical violence by the accused themselves. At the bail stage, this interpretation allows courts to consider strategy, coordination, and escalation as relevant forms of participation.

This reading has wide implications. It shifts the centre of gravity from overt acts to alleged orchestration. From a legal standpoint, the Court justified this approach by emphasising that it was not adjudicating guilt, but only assessing whether the prosecution material met the statutory threshold. The finding that accusations are prima facie true is not a finding of fact. It is a procedural conclusion that triggers the bail bar under Section 43D(5).

However, the consequences of this procedural conclusion are substantial. Once the threshold is held to be crossed, the default position becomes continued incarceration, often for extended periods, until trial progresses to a stage where renewed bail consideration is permitted. In this case, the Court allowed the appellants to seek bail again after the examination of protected witnesses or after one year, whichever is earlier. While this creates a review point, it does not alter the underlying dynamic of prolonged pre-trial detention.

The Court attempted to situate this outcome within a constitutional framework. The order acknowledges that the right to liberty under Article 21 is of foundational importance. It also states that liberty cannot be conceived in isolation, and must be balanced against community security, trial integrity, and public order. This articulation reflects an established line of jurisprudence. What the judgment does not do is resolve the structural tension between exceptional bail restrictions and systemic trial delays.

That tension is not unique to this case. UAPA trials, particularly those involving conspiracy allegations, are often complex and protracted. When bail is denied at the threshold stage, the duration of custody becomes less a function of individual culpability and more a function of institutional capacity. The Court’s direction to expedite proceedings acknowledges this problem, but does not by itself address it.

The order also clarifies a point that is frequently misunderstood in public discourse. UAPA does not mandate denial of bail as an automatic consequence of invocation. Courts retain jurisdiction to grant bail where continued detention is not shown to be necessary to serve a legitimate purpose recognised by law. In this case, that discretion was exercised in favour of five accused and withheld in respect of two, based on the Court’s assessment of their attributed roles.

Whether this distinction will withstand scrutiny at trial is a separate question. At the bail stage, courts are required to assume the prosecution’s case to be correct, subject to limited evaluation. The material relied upon, including protected witness statements, meeting chronologies, and allegations of coordination, will eventually be tested through cross examination and evidentiary challenge. Until then, the legal system operates on an assumption that has significant human consequences but limited adjudicatory depth.

The broader significance of the judgment lies not in its outcome, but in the framework it reinforces. It confirms that under UAPA, bail analysis is threshold driven rather than rights balancing in the conventional sense. It affirms that delay does not dissolve statutory restrictions. It endorses a role-based approach to culpability. And it accepts a broad conception of relevant conduct at the prima facie stage.

These positions do not end the debate. They relocate it. The central question now shifts from appellate reasoning to trial conduct. If courts are to deny bail on the basis of organised and deliberate activity, the burden on the prosecution to conduct prompt, focused, and credible trials becomes correspondingly heavier. Exceptional restrictions demand exceptional procedural discipline.

The Supreme Court’s order leaves the process open ended rather than closed. It neither forecloses future bail nor resolves questions of guilt. What it does is map the limits of judicial intervention at the threshold stage under an exceptional statute. Whether those limits are compatible with the realities of India’s criminal justice system remains an open question.

In that sense, the ruling functions less as a final word and more as a diagnostic. It exposes the strain placed on constitutional liberty when preventive statutes intersect with slow trials and expansive conspiracy allegations. How that strain is managed will depend not on further articulation of principle, but on institutional follow through.

The writer is a legal affairs commentator and columnist. She writes on law, governance, and institutional reform.