The Problematic Judgement in the Denial of Bail to Umar Khalid and Sharjeel Imam

The Supreme Court’s decision in Gulfisha Fatima v. State (Govt. of NCT of Delhi) has highlighted a disturbing issue in the denial of bail to persons alleged to have been involved in “terrorist” offences and prosecuted under the Unlawful Activities (Prevention) Act (UAPA), 1967, despite their long incarceration as undertrials. In such cases, the process itself becomes the punishment. 

The UAPA and other draconian laws (Narcotic Drugs and Psychotropic Substances Act, Prevention of Money Laundering Act, Maharashtra Control of Organised Crime Act) make it difficult for those arrested under these laws to get bail because of the restrictive conditions they impose on the grant of bail. Basically, they require the courts to come to a prima facie (tentative) conclusion that the persons arraigned are not guilty of the offence they are being prosecuted for. 

While in the Gulfisha Fatima case, most of the detenus were arrested in 2020 and had been incarcerated for over five years, there are cases where detenus have spent over seven years. Surendra Gadling has spent over seven years in jail in the Bhima Koregaon case and has not been granted bail to date. 

In most cases, they are charged, amongst other offences, under diverse sections of the Indian Penal Code (IPC)/Bharatiya Nyay Samhita (BNS), under the Prevention of Damage to Public Property Act, the Arms Act and, most importantly, under Sections 16 to 18 of UAPA. 

Bail Based on Long Period of Incarceration 

The restrictive provision in the UAPA was interpreted in Union of India v. KA Najeeb (2021), in which a three-judge bench of the Supreme Court, speaking through the present Chief Justice, Justice Surya Kant, held that:  

"Whereas at the commencement of proceedings the courts are expected to appreciate the legislative policy against grant of bail, the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would guard against the possibility of provisions of Section 43-D (5) of UAPA being used as the sole metric of denial of bail or for wholesale breach of constitutional right to speedy trial”. 

Thus, it is clear that KA Najeeb held that Section 43-D (5) will not apply if the detenu has been incarcerated for a substantial period of the proposed sentence and there is no likelihood of completion of the trial within a reasonable time. In that event, the imperatives of Article 21 (Life and Liberty) take over. The language could not be clearer. There is no question of going into the merits of the case. 

In most cases, the detenus would have spent over four years in jail awaiting trial. Charges would not have been framed. Even if framed, the trial would have not started, or if started, would be progressing extremely slowly. KA Najeeb would, therefore, be applicable on all fours. 

If the judges were beginning on a clean slate in this area of law, one would have no objection. But KA Najeeb is binding on them by what is known as the doctrine of precedent. They were bound to follow KA Najeeb. But they did not. 

A New Understanding of “Terrorism” 

The bench in Gulfisha Fatima has also evolved a new understanding of terrorism—and that too in a bail case. Terrorism is defined under Section 15 of UAPA as “doing of an act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country” by using weapons or substances of hazardous nature or “by any other means of whatsoever nature”. 

It was evident from the record that none of the seven in Gulfisha Fatima indulged in any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological, radioactive, nuclear or otherwise) of a hazardous nature. 

But the judges in Gulfisha Fatima have used the expression “by any other means of whatever nature” to expand the definition of terrorism—which is not only unwarranted but is untenable in law. 

Detenus Treated Differently 

In Gulfisha Fatima, the learned judges have treated Sharjeel Imam and Umar Khalid differently from the other detenus. They held that:  

“In cases alleging conspiratorial conduct, it becomes necessary to distinguish between the existence of a conspiracy and the position occupied by an accused within the alleged framework. While conspiracy may supply the overarching context, Section 43-D (5) requires attention to the nature, extent, and character of participation attributed to the individual.” 

On this basis, the learned judges have held that “Umar Khalid and Sharjeel Imam are prima facie attributed a central role and alleged to be ideological drivers of the alleged conspiracy”.  

In doing so, the bench has held contrary to a long line of judgments on the issue of criminal conspiracy. It is settled law that in cases of allegations of criminal conspiracy under Section 120A of the Indian Penal Code, 1860, all conspirators are treated equally in terms of liability. 

Section 120A IPC defines criminal conspiracy as an agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means. The mere agreement itself constitutes the offence. It is the agreement which is the offence, not the achieving of the object of conspiracy. Section 120B IPC prescribes the punishment, which is the same as for abetting the offence of conspiracy. All parties to the conspiracy receive the same punishment, irrespective of their individual roles or the extent of participation. 

This has been so held in Major E.G. Barsay v. State of Bombay (1961) and followed in a series of cases. In a case of criminal conspiracy, the agreement binds the accused collectively. The culpability remains the same for all associated with the object of the conspiracy, underscoring equal liability irrespective of individual knowledge or involvement. The role played by each conspirator (e.g., mastermind vs. peripheral participant) does not affect the liability for the conspiracy charge. 

Therefore, there could not have been differential treatment meted out to Umar Khalid and Sharjeel Imam on the one hand and the other five detenus on the other in the context of the charge of criminal conspiracy. Once the Court granted bail to the five detenus, Umar Khalid and Sharjeel Imam ought to have been granted bail too. 

Anand Grover is a Senior Advocate practicing in the Supreme Court of India and the Director of the Lawyer’s Collective (India). He has argued several cases including the rights of people living with HIV, decriminalising homosexuality, sexual harassment at the workplace, patent cases to make medicines accessible in developing countries.

(This article is part of the Magazine issue titled Thou Shalt Not Dissent dated February 1, 2026, on political prisoners facing long trials and the curbing of their rights under anti-terrorism laws for voicing their dissent)