THE EROSION OF RIGHTS IN A BROKEN BAIL JUDGEMENT

The Supreme Court's decision to deny bail to Umar Khalid and Sharjeel Imam goes against its own jurisprudence. It erodes constitutional guarantees that flowed from India's freedom struggle

- KALEESWARAM RAJ

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