When Liberty Can Wait: What the Supreme Court’s Bail Judgment Reveals

In its decision, the court granted bail to five accused persons but declined bail to Umar Khalid and Sharjeel Imam, holding that their continued incarceration has not yet crossed the threshold of “constitutional impermissibility.”

(Photo: Kamran Akhter/The Quint)

How long can a person remain in prison without trial—and still be told that the Constitution has not been violated?

That question lies at the heart of a judgment delivered by the Supreme Court of India on 5 January, while deciding a batch of bail appeals arising from the Delhi riots conspiracy case under the Unlawful Activities (Prevention) Act (UAPA).

In its decision, the court granted bail to five accused persons but declined bail to Umar Khalid and Sharjeel Imam, holding that their continued incarceration has not yet crossed the threshold of “constitutional impermissibility.” Both have spent over five years in custody. Their trial has not yet meaningfully begun.

The importance of the judgment lies not only in its outcome, but in the constitutional idea it leaves behind: that liberty may be foundational, yet postponable—and that prolonged incarceration can be troubling without being unconstitutional.

Liberty, But Never Alone

The court began by reaffirming a core constitutional truth.

Personal liberty under Article 21 is of foundational importance, and no court can be indifferent to the gravity of restraining liberty before guilt is adjudicated.

Yet, this affirmation was accompanied by an equally firm qualification. Liberty, the court held, does not exist in isolation. The security of the community, the integrity of the trial process, and the preservation of public order are also constitutional concerns. When bail is sought under a special statute like UAPA, courts are required to strike a careful balance—conscious that neither liberty nor security admits of absolutism.

This framing sets the terms of the judgment. The question before the court was not whether liberty matters, but how far it can operate once Parliament has designed a legal regime that narrows the space for release.

When Law Reorders the Meaning of Bail

Under ordinary criminal law, prolonged pre-trial incarceration is often treated as a strong reason for bail. UAPA disrupts that expectation.

Section 43D(5) of the Act conditions bail on a defined statutory threshold. Where the prosecution places material which, taken at face value, suggests that the accusation is prima facie true, courts are required to exercise restraint.

The Supreme Court was careful to clarify that this does not permit automatic denial of bail. Judicial scrutiny is still required. But it also insisted that courts cannot override the statutory framework merely because incarceration is long or liberty is invoked in general terms.

Article 21, in the court’s formulation, commands the manner in which the statute is applied. It does not erase the statutory condition itself.

This is a legally coherent position. But it also marks a shift in how liberty functions—no longer as a presumption in favour of release, but as a value that must wait until statutory thresholds are no longer satisfied.

Why Khalid and Imam Were Treated Differently

A notable feature of the judgment is its insistence on individual assessment. The court consciously avoided a collective approach and examined each accused separately.

In the cases of Umar Khalid and Sharjeel Imam, the court held that the prosecution material, taken at face value, attributes a “central and formative role” in the alleged conspiracy—involving planning, mobilisation, and strategic direction, extending beyond episodic or localised participation.

On this basis, the statutory bar under Section 43D(5) was held to continue to apply. While the court acknowledged that the period of incarceration was substantial, it concluded that continued detention had not yet crossed the threshold of constitutional impermissibility.

These conclusions are confined to the bail stage. The court did not pronounce on guilt. But the legal consequence is clear: the weight attributed to alleged role was treated as outweighing the passage of time at this stage.

When Delay Is Recognised, But Still Endured

Perhaps the most consequential aspect of the judgment is how it treats delay.

The court expressly recognised that prolonged pre-trial incarceration is a serious constitutional concern. It reiterated that criminal trials must progress with expedition, and that detention cannot continue without meaningful advancement of proceedings.

Yet, it stopped short of treating delay itself as decisive. Even after five years in custody, liberty was held capable of being deferred within the statutory framework.

To prevent detention from becoming indefinite, the court provided a future checkpoint: bail may be renewed after the examination of protected witnesses or after one year, whichever is earlier. Article 21, the SC said, continues to operate as a constitutional check.

But for now, liberty remains postponed—not because it lacks value, but because the law permits its deferral.

The Question the Judgment Leaves Open

The Supreme Court has applied the law as it stands. It has neither endorsed the prosecution’s case nor prejudged guilt. It has acted, in its own words, out of constitutional duty rather than preference.

And yet, the judgment leaves behind a difficult question.

If liberty is acknowledged as foundational, and prolonged incarceration is recognised as troubling, at what point does waiting itself become a constitutional harm? How long can freedom be deferred before its substance begins to erode, even if the law remains formally intact?

The court has answered the legal question faithfully. Whether that answer sufficiently addresses the lived meaning of liberty is not a matter of doctrine alone. It is a question that now belongs to democratic conscience.

(Sahil Hussain Choudhury is a lawyer and Constitutional Law Researcher based in New Delhi. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)