The Supreme Court has recently raised questions on its own past refusal to grant bail to Umar Khalid. Umar has been in prison for more than five years. This indicates that the country’s highest court itself is trying to find the appropriate balance between state power and constitutional liberties. For decades, Indian jurisprudence has been based on a fundamental principle: bail is the rule, jail the exception. This principle was memorably enunciated by Justice VR Krishna Iyer in the case of State of Rajasthan v. Balchand (1977). The Supreme Court had underlined that personal liberty cannot be sacrificed before conviction. This principle has been reaffirmed time and again, including in the case of Gudikanti Narasimhulu vs. Public Prosecutor (1978). In this the court had said that depriving liberty before conviction can be justified only in exceptional circumstances. More recently, a three-judge bench of the Supreme Court in the case Union of India vs KA Najeeb (2021) also held that even the draconian provisions of the UAPA cannot nullify the constitutional guarantees provided under Article 21, where long imprisonment and delay in trials themselves become instruments of injustice. The court had said that in such circumstances the stringency of Section 43D(5) of UAPA can also be reduced. But despite this established principle, Umar Khalid remains in prison since September 2020 in the Delhi riots conspiracy case. The case has not progressed in any meaningful direction. Therefore a serious question arises: If the State – despite all its investigative and prosecution powers – cannot complete the process within a reasonable time, should the accused continue to languish in jail indefinitely? Isn’t this actually punishment before conviction? In January 2026, a bench of Justices Arvind Kumar and NV Anjaria had refused bail to Umar Khalid and Sharjeel Imam, while granting relief to several co-accused. The bench said that delay in trial cannot be made a trump card for bail in UAPA cases. He also stressed the seriousness of the allegations. However, in a remarkable development just a few months later, a bench of Justice BV Nagarathna and Justice Ujjal Bhuyan publicly expressed serious objections to that earlier decision. While granting bail to an accused in a separate case related to UAPA on May 18, 2026, the bench strongly reiterated that bail is the rule and jail the exception – even in UAPA cases. The bench also said that the past denial of bail to Umar Khalid does not appear to be in line with the judgment given by the larger bench in the case of Union of India vs KA Najeeb. The implications of this are extremely important. For if an accused can be imprisoned for more than five years without conviction – and in the absence of any meaningful progress in the trial – the process itself turns into punishment. In such a situation, even if the accused is acquitted after ten years, the years lost in his life, his tarnished reputation, broken family life and the mental trauma suffered during imprisonment cannot be brought back. The issue is not limited to Umar Khalid only. This is a question related to the ever-expanding use of draconian laws like UAPA by all governments. These provisions were originally designed to deal with terrorism and serious threats to national security, but have gradually expanded to the area of political disagreement and ideological conflict. As such, recent observations of the Supreme Court indicate that the Court is aware that excessive inclination towards stringent statutory provisions – or endless procedural delays – can itself undermine the promise of freedom guaranteed by Article 21 of the Constitution. The question is much bigger. That is, does the Republic of India want to maintain the constitutional balance between state power and individual liberty? The Supreme Court has raised the right question. The nation must muster the courage to face its answer. Stringent laws like UAPA were originally created to deal with terrorism and serious threats to national security. But it is sad that gradually these have expanded to the area of political disagreement and ideological conflict. (These are the author’s own views)
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Pawan K. Verma’s Column: How fair is it to punish before being proven guilty?
