COURTKUTCHEHRY SPECIAL ON SECTION 43D (5) UAPA
Supreme Court Denies Bail to Umar Khalid, Sharjeel Imam: Section 43D (5) UAPA Explained
Court says ‘prima facie true’ test under UAPA bars bail despite long incarceration
Decision sparks debate on balance between national security and individual rights
By Our Legal Reporter
New Delhi: January 06, 2026:
On January 5, 2026, the Supreme Court of India refused bail to student activists Umar Khalid and Sharjeel Imam in the Delhi riots “larger conspiracy” case. The decision has brought Section 43D (5) of the Unlawful Activities (Prevention) Act (UAPA) into sharp focus. While five co-accused were granted bail, the apex court held that Khalid and Imam’s alleged role placed them on a different footing, making the statutory bar applicable.
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What is Section 43D (5) of UAPA?
- Provision: Section 43D (5) states that a person accused of terrorism-related offenses under UAPA shall not be released on bail if the court finds that the accusations are prima facie true.
- Interpretation: Courts apply a “prima facie” test, meaning they examine whether prosecution material discloses a case strong enough to deny bail.
- Impact: This clause makes bail extremely difficult, as courts are restricted from weighing evidence in detail at the bail stage.
Supreme Court’s Reasoning
The bench of Justices Aravind Kumar and Prasanna B. Varale observed:
- Central Role Alleged: Prosecution material suggested Khalid and Imam were involved at the level of “conceptualisation, direction, orchestration, or mobilisation” of the conspiracy.
- Prima Facie Case: The evidence disclosed a prima facie case, triggering Section 43D (5).
- Different Footing: Other accused were granted bail due to prolonged incarceration and weaker roles, but Khalid and Imam were considered “architects” of the alleged conspiracy.
Background: The Delhi Riots Case
- Incident: The February 2020 riots in Northeast Delhi during anti-CAA protests led to 53 deaths and over 700 injuries.
- Charges: Delhi Police alleged a coordinated conspiracy involving speeches, mobilization, and funding.
- Accused: Several student activists and community leaders were charged under UAPA.
- Bail Status: Five co-accused, including Gulfisha Fatima and Meeran Haider, were granted bail, but Khalid and Imam remain in jail after more than five years.
Why Bail Was Denied
- Severity of Allegations: The court held that Khalid and Imam’s alleged role was not peripheral but central.
- Statutory Bar: Section 43D(5) created a legal barrier once prima facie involvement was established.
- Judicial Precedent: Courts have consistently interpreted UAPA strictly, prioritizing national security concerns over individual liberty.
Criticism and Debate
- Civil Liberties Concerns: Critics argue that Section 43D(5) undermines the constitutional right to liberty by making bail nearly impossible.
- Long Incarceration: Khalid and Imam have been in jail for over five years without trial completion, raising questions about fairness.
- Judicial Discretion Curtailed: Lawyers say the provision ties judges’ hands, preventing them from considering broader factors like delay or weak evidence.
- Human Rights Perspective: International observers often criticize UAPA for being overly harsh and prone to misuse against dissenters.
Supporters’ View
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- National Security Priority: Proponents argue that terrorism-related cases require stricter bail norms to prevent accused from influencing witnesses or continuing unlawful activities.
- Legal Consistency: Courts have upheld the constitutionality of UAPA, emphasizing that extraordinary crimes need extraordinary measures.
- Deterrence: Strict bail provisions act as a deterrent against participation in unlawful activities.
Broader Implications
- For Activists: The ruling signals that courts will continue to apply UAPA strictly, making bail rare.
- For Judiciary: Highlights the tension between protecting liberty and ensuring national security.
- For Policy: Sparks debate on whether UAPA needs reform to balance security with human rights.
Explainer: What is UAPA and Why Section 43D(5) Matters
What is UAPA?
The Unlawful Activities (Prevention) Act (UAPA) is India’s primary anti-terror law. First enacted in 1967, it was designed to curb activities threatening the sovereignty and integrity of the country. Over the years, amendments have made it stricter, expanding its scope to cover terrorism-related offenses, funding of unlawful activities, and membership in banned organizations.
Section 43D(5) – The Bail Bar
One of the most controversial provisions of UAPA is Section 43D(5). It states that a person accused under UAPA shall not be released on bail if the court believes the accusations are prima facie true.
- Prima facie test: At the bail stage, courts only check whether the prosecution’s material discloses a case strong enough to deny bail.
- Effect: This makes bail extremely difficult, as judges cannot weigh evidence in detail or consider broader factors like delay in trial.
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CONCLUSION:
The Supreme Court’s refusal to grant bail to Umar Khalid and Sharjeel Imam under Section 43D(5) of UAPA underscores the rigidity of India’s anti-terror law. While the court distinguished their alleged roles from other accused, the decision has reignited debate on whether UAPA’s stringent bail provisions compromise civil liberties. As the trial continues, the case will remain a touchstone for discussions on law, liberty, and national security in India.
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