The Supreme Court’s January 5 decision denying bail to Umar Khalid and Sharjeel Imam—after nearly six years of incarceration without trial—marks a troubling milestone in India’s democratic journey. By declaring that constitutional guarantees of personal liberty are “not absolute” and must bow to the stringent bail provisions of the Unlawful Activities (Prevention) Act, the court has effectively sanctioned punishment without trial, guilt without conviction, and detention without end. The fact that five co-accused were granted bail on grounds that their alleged conduct was merely “subsidiary or facilitative” only sharpens the constitutional questions: what makes Khalid and Imam different? And at what point does preventive detention become indistinguishable from punishment?

The answer matters profoundly, not just for the two men languishing in Tihar Jail, but for the architecture of Indian democracy itself. When the highest court in the land accepts that special legislation can override constitutional freedoms indefinitely—when it treats road blockades and inflammatory speeches as equivalent to terrorism—it signals that the boundary between legitimate protest and criminal conspiracy has become dangerously blurred. For a democracy built on the right to dissent, this ought to trigger alarm.

The legal framework is straightforward enough. Under ordinary criminal law, bail is the rule and jail the exception. The burden lies on the prosecution to demonstrate why an accused should remain in custody. But UAPA inverts this principle. Section 43D(5) mandates that bail cannot be granted if the court, on a “prima facie” examination, believes the accusations are true. This requires the accused to effectively disprove allegations at the bail stage—a near-impossible standard given that evidence remains with the prosecution, cross-examination hasn’t occurred, and trial is yet to begin. The provision transforms bail hearings into mini-trials where the accused is disadvantaged at every turn.

The Supreme Court has, in recent years, acknowledged the harshness of this regime. In judgments like *Dataram Singh v. State of Uttar Pradesh* and observations in various bail matters, the court has emphasized that prolonged incarceration without trial violates Article 21’s guarantee of life and personal liberty. It has held that bail jurisprudence must balance individual rights against societal interests, and that the right to a speedy trial is fundamental. Yet in the Khalid-Imam matter, these principles evaporated. The court accepted that UAPA’s restrictions override constitutional protections, effectively holding that when Parliament labels something “terrorism,” ordinary rights cease to apply.

This represents a departure—or at least an erosion—of settled bail jurisprudence. The constitutional promise is not that liberty is absolute, but that its deprivation requires due process, proportionality, and temporal limits. Six years of pre-trial detention for speeches and organizing protests stretches any reasonable understanding of “due process.” The Supreme Court itself has held that bail should not be punitive, yet what else can one call indefinite incarceration based on allegations alone? The effect, if not the intent, is to punish before conviction—a practice fundamentally at odds with the presumption of innocence that anchors criminal justice systems worldwide.

The differential treatment of the accused compounds these concerns. The court granted bail to five others on the grounds that their alleged roles were “subsidiary or facilitative”—essentially accepting gradations of culpability within the same conspiracy. If the prosecution’s case is that a conspiracy existed to incite communal violence leading to the February 2020 Delhi riots, how can some conspirators be subsidiary? Either the conspiracy is established and all participants are culpable, or it remains unproven and bail should follow. The court’s willingness to parse degrees of involvement at this stage suggests doubt about the prosecution’s narrative—yet Khalid and Imam remain imprisoned.

What were the specific allegations? Khalid and Imam are accused of making inflammatory speeches during the anti-Citizenship Amendment Act protests and of organizing road blockades at Shaheen Bagh and Jamia. The prosecution contends these actions were part of a larger conspiracy to incite violence that culminated in the Delhi riots, which left 53 dead and hundreds injured. Yet the causal chain remains contested. Were the protests—largely peaceful sit-ins—genuinely designed to provoke violence, or were they legitimate expressions of dissent that the state found inconvenient? Did inflammatory speeches, however objectionable, constitute incitement to terrorism, or were they political rhetoric in a heated moment? And crucially, if road blockades amount to terrorist acts, what does that mean for every future protest that disrupts normal life?

This last question is not rhetorical. The characterization of protest actions as terrorism under UAPA sets a dangerous precedent. Road blockades have been a staple of democratic protest in India—farmers, students, labor unions, and countless other groups have employed them to press demands. If such tactics can be retrospectively labeled as terrorism when violence occurs elsewhere, often by unidentified actors, then every protest carries the risk of UAPA charges. The law becomes a tool not to prosecute actual terrorism, but to criminalize dissent preemptively. Governments—of any ideological stripe—gain the power to arrest organizers, hold them indefinitely without trial, and effectively eliminate opposition through process rather than verdict.

This weaponization of law is not hypothetical. UAPA cases have multiplied in recent years, increasingly targeting activists, journalists, students, and dissenters rather than armed insurgents or terrorists. The pattern is consistent: arrest under UAPA, denial of bail, prolonged incarceration, and either eventual acquittal after years in prison or trials that never conclude. The law’s purpose shifts from punishing terrorism to managing dissent. The chilling effect is intentional. When bail is nearly impossible, when legal costs are ruinous, and when families are destroyed by prolonged separation, the message to potential protesters is clear: dissent at your peril.

From an Indian constitutional perspective, this trajectory ought to be intolerable. The freedom struggle was built on civil disobedience—on road blockades, hartals, non-cooperation, and defiance of authority. The founding generation understood that democracy requires breathing space for opposition, even when that opposition is disruptive, even when it angers those in power. The Constitution embeds this understanding in Articles 19 and 21—freedoms of speech, assembly, and movement, limited only by reasonable restrictions necessary for public order, not for governmental convenience.

UAPA, as currently applied, subverts this framework. Reasonable restrictions become indefinite detention. Public order becomes a pretext for silencing inconvenient voices. And the judiciary, which ought to be the bulwark against executive overreach, instead defers to prosecutorial narratives and accepts that special laws justify special rights violations. The Supreme Court’s ruling doesn’t merely affect Khalid and Imam—it validates a model of governance where preventive detention replaces due process, where allegations suffice as punishment, and where the state’s characterization of dissent as terrorism goes largely unchallenged.

What, then, should have been done? At minimum, the court could have applied its own precedents on speedy trial and bail. Six years without trial is manifestly unreasonable. The court could have held that even under UAPA, such prolonged detention violates Article 21 unless trial is expedited—and then ordered the trial to commence immediately or bail to be granted. It could have scrutinized the prosecution’s characterization of protest actions as terrorism, applying the same skepticism courts once brought to colonial-era sedition charges. And it could have rejected the false binary between personal liberty and national security, recognizing that a democracy weakened by suppressing dissent is no more secure—indeed, it is less so.

The alternative future is bleak. If UAPA’s bail provisions are accepted as constitutionally valid overrides of fundamental rights, if road blockades can be terrorism and inflammatory speeches conspiracies, then the space for legitimate protest shrinks to insignificance. Future governments, emboldened by judicial deference, will expand the law’s ambit further. Activists, journalists, students—anyone who challenges power—becomes vulnerable. And India’s constitutional promise, that liberty is precious and its deprivation requires justification, becomes hollow.

Umar Khalid and Sharjeel Imam remain in prison not because they have been proven guilty, but because the law allows it and the court permits it. Whether their speeches and actions warranted prosecution is a question for trial. Whether they should spend years imprisoned before that trial occurs is a question the Constitution has already answered—or ought to have. That the Supreme Court answered differently suggests not that the law has changed, but that our collective commitment to liberty has weakened. In a democracy, that is the most dangerous erosion of all.