Introduction
The legal stakes of bail-stage review under special statutes are both simple and profound. Bail is the portal through which liberty can be preserved in pending adjudication special statutes understandably designed to confront the most serious threats to state security narrow that portal. The narrower it is made to be by statute and judicial interpretation, the greater the burden on courts to ensure that the narrowing does not become an instrument of indefinite pre-trial detention or a tool for the criminalization of political dissent.
The Delhi High Court’s detailed judgment in Sharjeel Imam v. State of NCT of Delhi exemplifies this danger. At the bail stage, the Court accepted that the prosecution had produced ‘prima facie’ material showing the appellants to be the architects of a four-phase conspiracy allegedly beginning with WhatsApp group formation and pamphlet distribution in December 2019 and culminating in the February 2020 riots.
This article proceeds in four parts. Part I outlines Section 43D(5) of the UAPA and its judicial interpretation. Part II critiques the Delhi High Court’s misapplication of the prima facie standard. Part III examines the Court’s flawed evidentiary reasoning and its departure from established conspiracy law in the case of Firozuddin and Nalini and explores the constitutional implications, showing how the judgment conflates lawful dissent with terrorism, imperiling fundamental freedoms.
Section 43D (5) and the Prima Facie Inquiry
The UAPA imposes a strict bail regime. Section 43D(5) directs that a person accused of a scheduled offence- meaning one listed in the UAPA’s Schedule of terrorism-related offences may be released on bail only if the Court is “satisfied that there are reasonable grounds for believing that the accusation is prima facie true.” The Supreme Court has clarified that this standard merely requires that the prosecution’s materials, on their face, indicate the accused’s potential involvement, subject to later contradiction at trial. Even when this threshold is met, the courts must balance it against constitutional guarantees of liberty.
In KA Najeeb v Union Of India, the Supreme Court held that UAPA’s bail restrictions, though stringent, are ‘less stringent’ than those under the NDPS Act and must be harmonised with constitutional liberties. By treating the prosecution’s narrative as established fact rather than allegation, the Delhi High Court effectively conducted a merits-based inquiry, exceeding the limited prima facie standard. This echoes the very mistake reproved in NIA v. Zahoor Ahmad Shah Watali, the Allahabad High Court, where there was “perverse” and “exceeded the limited scope of a bail proceeding” by effectively conducting a mini-trial on evidence. Here too, the Delhi HC should have merely asked whether the allegations, if assumed true, could possibly constitute conspiracy; instead, it examined the probative value of each item in detail, contrary to Section 43D(5)’s mandate and to the Supreme Court’s rebuke of such analysis in Thwaha Fasal v. Union of India.
Similarly, in NIA v. Zahoor Ahmad Shah Watali, the Supreme Court reversed a bail order because the lower courts had delved into detailed evidence on the merits and “determined admissibility” of evidence, going “beyond the statutory mandate of prima-facie assessment”. Here, Sharjeel’s case suffers the same disease; the Court parsed everything from WhatsApp logs to political pamphlets as if deciding guilt, contrary to judgments warning.
Further, Section 43D (5) arguably did not apply to the primary acts attributed to Imam. As defence counsel contended, the alleged conduct calls for ‘chakka-jam’ protests, public speeches, and writings would, at most, fall under Section 13, which criminalises ‘unlawful activities’ rather than terrorism offences. Section 43D (5)’s heightened bail bar applies only to terrorism-related offences, not to Section 43D (5). If a Section 13 offence was made out, the entire 43D (5) embargo would fall away. Thus, the judgment simply assumes Sharjeel was part of a “larger conspiracy” and treated all his words and actions under the harsh conspiracy sections of Chapter IV(terrorism-related offences). Thus, as observed in KA Najeeb vs Union of India, UAPA’s bail restriction is not a complete curtailment of bail, and courts must interpret it in harmony with constitutional liberty.
Flawed Evidentiary Reasoning
A fundamental flaw in the judgment lies in its reliance on weak and untested evidence. The Court specifically claimed it had examined WhatsApp discussions, pamphlets, speech transcripts, call-detail data, and several witness statements (even protected witnesses). It then declared that, taken together, these showed the appellants to be “masterminds” of the alleged conspiracy. But many of these items are individually and collectively weak. For example, the prosecution relied on statements of anonymous protected witnesses. These witnesses, by scheme, cannot be confronted, and their testimony is inherently untested. These statements largely replicate one another and fail to establish the commission of specific offences. Notably, one protected witness, identified as ‘Saturn,’ was deemed unreliable in a separate Delhi riots case.
Under law, one conspirator’s declaration is only admissible against others if made in furtherance of the conspiracy. Further, there is no independent record here of any such clandestine agreement. By treating these statements as conclusive proof of a plot, the Court inverted the evidentiary rule laid down in Firozuddin Basheeruddin V State of Kerela. Under Firozuddin, a court must first be satisfied, through independent evidence, that a conspiracy exists before relying on hearsay statements to prove participation in it. Here, the High Court presumed the existence of a conspiracy and then used these very statements to corroborate that presumption. The Court did not analyse their content to show they incited an unlawful act, and it simply treated them as part of the conspiracy narrative. The verdict records that Sharjeel set up student WhatsApp groups and that meetings were held via WhatsApp, but it concedes he sent “no incriminating message” himself, and there is no showing that planning a peaceful sit-in or marching under slogans was in furtherance of violence, yet the judgment assumes it was. The Court never uses the applicable test that, unless it incites lawlessness, hostile political speech is protected in India.
Under Firozuddin, one can only admit, for example, a WhatsApp or pamphlet as evidence after showing there was a prior clandestine agreement to break the law. The High Court did not and could not do that; instead, it treated protest planning and rhetoric as if they proved the agreement itself. This is inconsistent with Firozuddin’s principle that even in conspiracy cases the trial court must first piece together an “unbroken chain” of circumstantial evidence establishing agreement and with State Vs. Nalini before any statement or act of one conspirator can be used against another, the prosecution must first prove the very fact of the conspiracy through independent evidence, Rather than first establishing an unlawful agreement through independent material such as proof of secret meetings, planning for violence, or procurement of weapons it treated the very acts of protest organization and political dissent as the evidence of conspiracy itself.
Free Speech, Assembly and Liberty
The Court ostensibly acknowledged the fundamental freedoms guaranteed under Article 19 of the Constitution, though its analysis amounted to little more than lip service. The judgment cited Imran Pratapgarh V State of UP to reiterate that “the right to dissent in a legitimate and lawful manner is an integral part” of the freedom of speech and expression, and that citizens possess the right to “peacefully protest” against governmental action, including through “demonstrations or agitations,” provided such activities remain “orderly, peaceful, and without arms. However, immediately after these formal affirmations, the judgment proceeds to treat the very organisation of peaceful demonstrations as evidence of a criminal conspiracy. This reasoning dangerously collapses the distinction between protected dissent and unlawful conduct, thereby narrowing the constitutional space for free speech and assembly under Article 19(1)(b). Notably, at no point did the prosecution allege that Sharjeel Imam or Umar Khalid personally incited or participated in violent acts. The judgment, thereby equating peaceful advocacy with criminal conspiracy, grants the state an excessively broad mandate to suppress controversial or dissenting speech and assembly.
This approach stands in stark contrast to established constitutional jurisprudence. As early as State of Bihar v. Shailabala Devi, the Supreme Court held that speech may only be curtailed if it has a “tendency to excite persons to acts of violence”. This principle was reaffirmed in Shreya Singhal v. Union of India, where the Court emphasized that mere advocacy, howsoever unpopular, cannot be penalized absent a clear and proximate link to incitement of imminent violence. Similarly, in S. Khushboo v. Kanniamal & Anr , the Supreme Court underlined that a democratic polity requires tolerance for unpopular or even offensive views. By imputing seditious intent from ambiguous political expressions and lawful mobilisation, the Delhi High Court’s reasoning is fundamentally at odds with these precedents.
Equally troubling are the implications under Article 21, which guarantees the right to life and personal liberty. The Supreme Court has repeatedly emphasised that bail cannot be withheld as a form of punishment and that undertrial incarceration must be restricted to the minimal extent necessary. In Javed Gulam Nabi Shaikh v. State of Maharashtra (2024), the Supreme Court admonished trial and appellate courts for forgetting the “well-settled principle of law that bail is not to be withheld as a punishment.”
Despite these binding principles, the High Court has denied bail to Sharjeel Imam and Umar Khalid, both of whom have been in custody since January 2020,over five years, without a completed trial. Such indefinite detention without adjudication is inherently punitive and violates the constitutional presumption of innocence. In Sheikh Javed Iqbal v. State of Uttar Pradesh, the Supreme Court reaffirmed that courts must tilt in favour of liberty, especially where statutory mechanisms such as the UAPA create an almost insurmountable barrier to bail. The Delhi Court made no apparent effort to temper the statutory bar with Sharjeel’s 5-year detention. This also runs counter to Union of India v. K.A. Najeeb (2021), where a three-judge Bench upheld bail for a UAPA accused after noting his trial had dragged on for over five years and similarly, in Jahir HaK v. State of Rajasthan (2022), the Court granted bail to an accused jailed for eight years without trial. By disregarding these precedents, the Delhi High Court effectively sanctioned punitive detention without conviction. By focusing on the accused’s speech and purported associations rather than the absence of proven violent conduct or any realistic prospect of trial conclusion. The net effect is the normalisation of preventive detention through the back door, reducing Article 21 to a hollow promise.
Conclusion
The Delhi High Court’s bail order in Sharjeel Imam v. State Of Nct Of Delhi falls afoul of multiple legal standards as it misconstrued. Section 43D(5), treating innocuous or protected communications as sufficing to satisfy a stringent statutory threshold. Further, it effectively held a mini-trial on the merits, in direct conflict with Watali’s prescription. By ignoring core principles of conspiracy law from Firozuddin, by assuming culpability before analysing evidence. And crucially, it risked suppressing fundamental freedoms: calls for protest, political pamphlets and speeches – acts squarely within Articles 19(1)(a)–(b) were warped into “criminal conspiracy” evidence, undermining the very rights the Court professed to value.
The judgement indicates that the democratic right to demonstrate and dissent against perceived unjust and repressive legislation has, in effect, been criminalized. Although none of these individuals advocated for violence, nor is there any direct evidence of inciting such acts, they have been incarcerated based on an implausible accusation of “conspiracy.” The scope of this allegation is so expansive that nearly anyone associated with these protests could also face imprisonment, despite having no link or accountability for the actual violence that transpired. This signifies a perilous contraction of civil freedoms in India, approaching near extinction.
(This post has been authored by Varun Pandey, a fourth-year student at WBNUJS, Kolkata)
CITE AS: Varun Pandey ‘Collapse of the Bail Gate: How the Delhi High Court Misapplied Section 43D UAPA and Conflated Protest with Conspiracy in Sharjeel Imam v. State of NCT of Delhi’ (The Contemporary Law Forum, 23 September 2025) <https://tclf.in/2025/09/23/collapse-of-the-bail-gate-how-the-delhi-high-court-misapplied-section-43d-uapa-and-conflated-protest-with-conspiracy-in-sharjeel-imam-v-state-of-nct-of-delhi/> date of access.
Beton Delme