“Bail Not Jail” Remains in Theory? Constitutional Limits on Prolonged Pre-Trial Detention under UAPA

Abstract

According to Article 21 of the Indian Constitution, the principle “bail is the rule, jail is the exception” has long been accepted as an essential justification of individual liberty. Still, a further clarification of this constitutional guarantee has become necessary with the enactment of stricter anti-terrorism laws like the Unlawful Activities (Prevention) Act, 1967 or UAPA.  The UAPA introduced more-stringent standards of granting bail to accused parties.

From 2025 to early 2026, courts were confronted repeatedly with cases surrounding the lengthy duration of pretrial detention and deferment of trials. In these cases, the grounds invoked were ideologies whose underlying ideas often contradicted each other such as individual liberty and national sovereignty. This paper seeks to analyse whether lower courts under UAPA largely influenced by pro-individual liberty bail jurisprudence laid down by the Supreme Court of India or “bail not jail” continues to remain merely a political slogan unmindful of bureaucratic impediments.

Introduction

The guiding maxim of Indian criminal jurisprudence is “bail is the rule, and jail is the exception,” which flows from the constitutional provision under Article 21 related to the freedom of an individual. The notion of pre-trial detention being considered a form of punishment for the accused, who could have committed no crime as yet and has yet to be convicted for it, is prevented by this maxim. This notion of preventive detention being exceptional rather than routine, as expounded fully in academic discussions, applies even in special criminal laws. [1]

However, in cases brought under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the application of this principle is severely limited. The UAPA’s bail statutory framework sets higher standards that force judges to determine whether a prima facie case exists at the bail stage, which frequently leads to extended pre-trial detention. Despite repeated judicial affirmations of personal liberty, bail under special statutes like UAPA remains the exception rather than the rule, according to an empirical analysis of bail decisions made between 2024 and 2025.[2]

 When the Supreme Court in India denied bail to Umar Khalid and Sharjeel Imam in the broader conspiracy charge that emerged as the side effect of the 2020 Delhi riots in January 2026, although bail was given to some other co-accused’s in the matter, issues like this ambiguity came into the fore.[3]

The court held that in circumstances where UAPA provisions have not been satisfied, extensive detention could not be held to be unconstiutional per se.⁠ ⁠ [4]

Although the ruling has been quite contentious in the legal fraternity, especially in relation to the impact for accused persons through stringent laws on the presumption of innocence as guaranteed in the Constitution, the Court took varying stances depending on the offender’s crime, as shown in the judgments summary. Evidently, the prosecutor’s stories impact bail as guided by the UAPA.[5]

It is felt to be distinct from other cases already decided by the Courts, as it stresses the need to be careful about restricting freedom before a person has actually been convicted. Given such facts, today’s piece will be to distinguish whether the judiciary in case UAPA has been influenced by the bail mantra given by the Supreme Court in the matter of liberty, and is it a mere theoretical construct ‘bail and not jail’ in actual practicality or otherwise.

In that context, the existing bail system in 2025-2026 is set in broader constitutional discourses on constitutional exceptionalism, pre-trial incarceration and the extent of intervention in national security related crimes.

The Legal Framework Of The Bail, Article 21, & The UAPA Bail Threshold

Article 21 of the Indian Constitution, which guarantees personal liberty, has a significant influence on the judicial foundation of the country’s bail system. The adage “bail is the rule and jail is the exception” attests to the understanding that pre-trial incarceration must only take place in extreme circumstances and that, otherwise, the criminal justice system itself may become criminal in nature, upsetting the presumption of innocence and the implicit principle of proportionality in Article 21, as has been highlighted in scholarly literature on the topic.

This constitutional presumption of liberty, however, has considerable dilution in prosecution under special criminal statutes such as the Unlawful Activities (Prevention) Act, 1967. The UAPA introduces a higher threshold for the grant of bail by statutorily mandating courts to consider whether the accusations against the accused are prima facie true at the stage of bail. The effect of this structure is that the adjudication of bail has shifted from limited inquiry into necessity and flight risk to a preliminary assessment of evidentiary material, which is often in the nature of prosecution version. An empirical study of bail orders under special statutes reveals that this statutory framework has yielded an end where grant of bail has become the exception, rather than the rule, in cases under UAPA.

Analysis of the data regarding bail orders passed by the Supreme Court of India during the period 2024 through 2025 throws light upon a trend which asserts liberty, yet still maintains a certain degree of deference towards the statutory bail bars on being raised on grounds of national security. This, in turn, has resulted in the acquiescence of indefinite pre-trial detention under UAPA.

Consequently, bail hearings under the UAPA increasingly incorporate preliminary evaluations of evidentiary inputs and alleged roles of the accused in what borders on trial-like proceedings before conviction. Although the adjudication under the Constitution of liberty under Article 21 is often explicitly referenced in discussions around bail hearings under the UAPA, the working of Article 21 is articulated by a legal regime that is more driven by preventive logic than the logic of freedom.

The Supreme Court Bail Jurisprudence Under UAPA (2025-2026)

The Supreme Court bail cases under the Unlawful Activities (Prevention) Act in the years 2025-2026 exemplify the applicable bounds of the Court’s liberal principles in the face of the constraints imposed by bail laws in the Act. This dilemma manifests itself most obviously in the Court’s decision in January 2026 to deny bail to Umar Khalid and Sharjeel Imam in the larger conspiracy charge in relation to the Delhi riots in 2020, while granting bail to some other accused.[6]

Here, the issue presented the Court’s stance on distinguishing between the accused on the basis of their alleged involvement in the prosecution’s story.

While denying bail, the Court held that the mere possibility of prolonged detention before trial could not be held unconstitutional per se in circumstances where the provisions under the UAPA were not fulfilled.

Even as it recognised the relevance of the right to personal liberty under Article 21, it held finally that it was bound by the legislative directive implicit in the bail provisions in UAPA. Indeed, the judiciary’s reasoning shows an acknowledgement of readiness to accommodate a period of incarceration prior to trial when a prima facie case has been found.

Further scrutiny of the judgment summaries of the order shows the Court employed a role-based approach in which some of the alleged individuals were considered to be on a different pedestal because of their alleged role in the conspiracy.[7]

This reflective of the influence of legal storytelling to a great extent as the Court delivers bail based on the version chosen by the state. While the Court’s logic addresses constitutional considerations in bail setting, its practical effect continues to reflect deference to the bail threshold set by the statute in the bail of security-related offenses.

Conclusion

The analysis of the bail precedents of the Supreme Court during the period 2025-2026 illustrates a nuanced judicial stance in an effort to maintain congruence between constitutional guarantees of liberty and the peculiar statutory framework of the Unlawful Activities (Prevention) Act. Although the Supreme Court continues to reemphasize the primacy of Article 21 of the Indian Constitution, its bail judgments illustrate how this impulse is circumscribed when national security laws are brought into the scenario.

Such is the case in the more recent judgments, which have demonstrated a photocopy approach on the court’s stance on the issue: excessive pre-trial detention is suboptimal but does not necessarily go beyond the constitutional limits in the absence of the statutory bail conditions being met. Through this stance on the permissible consequence of the preventive approach under UAPA, the court is practically rearranging the way the concepts of liberty and time interact in criminal trials. Delay, which was conventionally in the balance on the side of bail, would no longer have the privilege of priority in trials subject to stringent statutory norms.

The court’s resort to ‘role differentiation’ among the accused further aggravates the dynamic nature of bail determination under UAPA. Role differentiation ostensibly ensures individual justice but at the same time seeks to incorporate prosecutorial discourses into the bail determination procedure, where the prosecutorial accusation of conspiracy involvement gains conclusive relevance. The bail determination procedure thereby tends to become a preliminary determination of guilt rather than an assessment of necessity, blurring the line between suspicion and proof.

Perhaps even more revealing is the limited scope of the Supreme Court bail rhetoric to control the lower courts under the same legal framework. Given the lack of doctrinal adjustment, the lower courts are encouraged to take a prudent approach where the first consideration is the statute to reinforce the exceptional status of bail in national security criminal trials. Thus, the “bail and not jail” principle continues as an ideal of the constitutional state but not as the practicing norm in UAPA.

Indicates that the extent to which prolonged detention prior to trial in UAPA cases is a reflection of judicial indecision and the degree to which it is a structural characteristic of preventive criminal law. Unless the issue is properly addressed in the jurisprudence that will follow, the constitutional right to liberty may remain in theory but lose strength in practice.

References:

1. “Bail is the Rule, Jail is the Exception – A Constitutional Imperative Even under Special Laws like UAPA,” Indian Journal of International Research and Legal Studies (IJIRL), June 2025. com/wp-content/uploads/2025/06/BAIL-IS-THE-RULE-JAIL-IS-THE-EXCEPTION-%E2%80%93-A-CONSTITUTIONAL-IMPERATIVE-EVEN-UNDER-SPECIAL-LAWS-LIKE-UAPA.pdf 
2. Supreme Court Observer, “The SC on Bail under UAPA and PMLA: A Dataset from 2024 and 2025” (2025).  http://scobserver.in/journal/the-sc-on-bail-under-uapa-and-pmla-a-dataset-from-2024-and-2025/
3. Citizens for Justice and Peace, “Bail for Five, Not for Two: Supreme Court Denies Bail to Umar Khalid and Sharjeel Imam in Delhi Riots Case” (5 January 2026). http://cjp.org.in/bail-for-five-not-for-two-supreme-court-denies-bail-to-umar-khalid-and-sharjeel-imam-in-delhi-riots-case/
4. Supreme Court Observer, “Supreme Court Rejects Umar Khalid and Sharjeel Imam’s Bail Pleas, Says Continued Detention Not ‘Constitutionally Impermissible’” (5 January 2026). http://scobserver.in/reports/supreme-court-rejects-umar-khalid-and-sharjeel-imams-bail-pleas-says-continued-detention-not-constitutionally-impermissible/
5. The Leaflet, “Judgment Summary: Supreme Court’s Decision Denying Bail to Umar Khalid and Sharjeel Imam” (2026). http://theleaflet.in/sedition-uapa/judgment-summary-supreme-courts-decision-denying-bail-to-umar-khalid-and-sharjeel-imam

[1]  “Bail is the Rule, Jail is the Exception – A Constitutional Imperative Even under Special Laws like UAPA,” Indian Journal of International Research and Legal Studies (IJIRL), June 2025. ijirl.com/wp-content/uploads/2025/06/BAIL-IS-THE-RULE-JAIL-IS-THE-EXCEPTION-%E2%80%93-A-CONSTITUTIONAL-IMPERATIVE-EVEN-UNDER-SPECIAL-LAWS-LIKE-UAPA.pdf 

[2] Supreme Court Observer, “The SC on Bail under UAPA and PMLA: A Dataset from 2024 and 2025” (2025).  http://scobserver.in/journal/the-sc-on-bail-under-uapa-and-pmla-a-dataset-from-2024-and-2025/

[3] Citizens for Justice and Peace, “Bail for Five, Not for Two: Supreme Court Denies Bail to Umar Khalid and Sharjeel Imam in Delhi Riots Case” (5 January 2026). http://cjp.org.in/bail-for-five-not-for-two-supreme-court-denies-bail-to-umar-khalid-and-sharjeel-imam-in-delhi-riots-case/

[4] Supreme Court Observer, “Supreme Court Rejects Umar Khalid and Sharjeel Imam’s Bail Pleas, Says Continued Detention Not ‘Constitutionally Impermissible’” (5 January 2026). http://scobserver.in/reports/supreme-court-rejects-umar-khalid-and-sharjeel-imams-bail-pleas-says-continued-detention-not-constitutionally-impermissible/

[5] The Leaflet, “Judgment Summary: Supreme Court’s Decision Denying Bail to Umar Khalid and Sharjeel Imam” (2026). http://theleaflet.in/sedition-uapa/judgment-summary-supreme-courts-decision-denying-bail-to-umar-khalid-and-sharjeel-imam

[6] Supreme Court Observer, “Supreme Court Rejects Umar Khalid and Sharjeel Imam’s Bail Pleas, Says Continued Detention Not ‘Constitutionally Impermissible’” (5 January 2026). http://scobserver.in/reports/supreme-court-rejects-umar-khalid-and-sharjeel-imams-bail-pleas-says-continued-detention-not-constitutionally-impermissible/ 

[7]The Leaflet, “Judgment Summary: Supreme Court’s Decision Denying Bail to Umar Khalid and Sharjeel Imam” (2026). http://theleaflet.in/sedition-uapa/judgment-summary-supreme-courts-decision-denying-bail-to-umar-khalid-and-sharjeel-imam