New Delhi: India today jails scores of political activists under a slew of laws, primarily the Unlawful Activities (Prevention) Act, 1967 (UAPA), keeping many in custody for years before trial—often only freeing them after bail orders by higher courts.
Take the Bhima Koregaon (BK-16) case, where 16 activists were arrested under UAPA in 2018. As of 2025, 4 of the 16 remain behind bars without bail or trial. Similarly, Kashmiri human-rights defender Khurram Parvez has been detained for nearly four years on UAPA charges.
Even in the high-profile 2020 Delhi riots “larger conspiracy” case, the Delhi High Court refused bail to activists Umar Khalid, Sharjeel Imam and seven others in September 2025, five years after their arrests.
These are not isolated instances but part of a trend that has developed in the last decade: undertrial detainees in political cases spend half a decade or more in jail before any substantial progress, in defiance of rights conferred by the Constitution.
The union home ministry told Parliament on 2 December 2025 that 10,775 arrests were made under the UAPA between 2019 and 2023, with only 335 convictions—a conviction rate of about 3.1%.
As India marked World Human Rights Day on 10 December, the plight of jailed activists underlined the gap between rights rhetoric and judicial practice.
Bail Only After Higher Courts Intervene
Most of those arrested eventually have won bail in higher courts on strong legal grounds—but only after inordinate delays and extended imprisonments.
In January 2025, the Bombay High Court cited Rona Wilson’s “long incarceration” of six and a half years and granted him regular bail.
On 4 December 2025, the same court freed former Delhi University professor Hany Babu after more than five years in detention, holding that continued custody “without a completed trial or framed charges” violated his right to liberty.
Other Bhima Koregaon accused won bail after similar delays: tribal-rights activists Sudha Bharadwaj (bailed out in Dec 2021 after three and a half years) and Gautam Navlakha (bailed out in Dec 2023 after three years) were freed.
Even when evidence is dubious—for example, a US forensic report suggesting that incriminating files on Wilson’s laptop were “planted” malware—trial courts have sat on petitions for years, forcing appeals to high courts for any relief.
While granting bail to trade unionist, activist and trade unionist Vernon Gonsalves, the Supreme Court held that “mere holding of certain literature through which violent acts may be propagated would not ipso facto attract the provisions of terrorist act under UAPA”.
It took around five years of custody as an undertrial of a political prisoner to re-reiterate something which the apex court stated previously, while granting bail in Thawha Fasal vs Union of India in 2021.
Father Stan Swamy, an 84-year-old priest and tribal activist, died in judicial custody in 2021 while waiting bail for charges under UAPA, reflecting the role of trial courts in failing to exercise bail jurisdiction and the deteriorating situation of human rights in India.
Slow Justice In ‘Fast-Track’ Courts
India has designated special courts to try terrorism and anti-state cases (under the National Investigation Agency or NIA, or those charged under UAPA), with extra powers and presumed urgency. In practice these courts have failed to hasten trials.
In one BK-16 case hearing, the Bombay High Court (HC) even scolded the special NIA court: it had set a nine-month deadline to frame charges, yet “that deadline too has passed, with charges yet to be framed”.
Noting that the chargesheet ran to 20,000 pages and cited 363 witnesses, the high court said chances of completing trial “in the near future are bleak”. The so-called fast-track special court had hardly started the trial even after five years.
Indeed, as of late 2023 the special court was still hearing preliminary discharge petitions for the accused, years after those motions were filed.
The Supreme Court (SC) has warned sharply and repeatedly (here, here and here) about this breakdown.
In July 2025, in Kailash Ramchandani vs State Of Maharashtra, the Supreme Court noted that the absence of adequately equipped NIA (special) courts was forcing unacceptable delays.
In May 2025, the Supreme Court emphasised the need for dedicated courts for UAPA or trials under the Maharashtra Control of Organised Crime Act 1999.
Yet, even existing NIA courts are old trial courts simply redesignated.
Without functional special courts, accused languish in jail: the Supreme Court warned in 2024 that unless trials are hastened and authorities establish special courts, judges must release prisoners to protect their liberty.
That ultimatum underscores the point that special courts currently lack the will to ensure timely justice in political cases.
De Facto Detention
UAPA trials, especially political cases, create a de facto detention regime, unless higher courts intervene.
Section 43D(5) of the UAPA states that bail “shall not” be granted if there are “reasonable grounds” to believe that the accusation against the accused are prima facie true.
This language, in its strictest interpretation by lower courts, has been described as making “jail the rule and bail an exception”. The provision has led trial courts to read the statute as directing them to deny bail almost automatically.
However, two judgements reflect that the law has progressed over time. First, judgement in the K.A. Najeeb case passed by the apex court, where the court held that section 43D(5) is only an additional condition and cannot oust Article 21 of the Constitution of India, which guarantees the “protection of life and personal liberty”.
Second, the judgment while granting bail to Vernon Gonsalves, where the Supreme Court held that “in the case of Zahoor Ahmad Shah Watali, it has been held that the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences”.
“What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail,” said the Supreme Court. “In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth.”
Recently, higher courts have insisted on protecting personal liberties under Article 21. In Jalaluddin Khan vs Union of India the Supreme Court in 2024 stressed that the presumption of innocence must still apply and that bail may be granted in deserving UAPA cases.
The Supreme Court reprimanded the special court and high court.
“Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively,” said the Supreme Court.
“When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail… the duty of the Courts is to consider the case for grant of bail in accordance with the law.”
The Supreme Court has consistently held that “bail is the rule and jail is the exception”. Even where statutes impose stringent conditions, bail must be granted once those conditions are satisfied. The Court has further emphasised that denial of bail in deserving cases violates Article 21, unjustifiably curtailing personal liberty.
In Professor Hany Babu’s case, the Bombay High Court observed that continued incarceration was unjustifiable when the trial remained at a standstill.
“It is by now a well settled and recognized principle of law that prolonged incarceration without trial amounts to infringement of right (sic) of an accused enshrined under Article 21 of the Constitution of India,” said the Bombay High court. “The prolonged incarceration and unlikelihood of the trial being completed in reasonable time or near future, necessitates a consequential release of the under trial on Bail.”
Yet, before these pro-liberty turns of the courts, many activists spend years pursuing bail under the harsh UAPA clause.
In practice, several activists got no relief from the special court and only won bail from high courts on the grounds of prolonged custody.
On World Human Rights Day in 2022, Sikh activists publicly dedicated the day to “political prisoners” across India, highlighting cases like Bhima Koregaon and Assam detainees.
To mark the day, many judges delivered human-rights lectures, and yet the next hearings in these cases only underscore how far theory is from practice.
The courts’ promise of justice for all is undermined by a system that allows cases of conscience and dissent to languish without accountability.
The Price Of Inertia
The data tabled in Parliament in December 2025 also suggested that the maximum number of arrests were made in Kashmir, with only 23 convictions under UAPA during the period of 2019-2023.
Over the years, concerns have been raised by civil society groups (here, here and here) about the misuse of UAPA for curbing dissent, especially in conflict zones like Kashmir and the role of trial courts as spectators, while waiting for higher courts to implement the law in UAPA cases.
The consequences of this inertia are clear: political activists have remained jailed without trial, dissent has been chilled, and civil society’s confidence in justice has eroded.
Courts must ask: if evidence is voluminous and contested, how can it serve the “interest of justice” to keep detenues incarcerated indefinitely? In practice, many bail orders in such cases focus on the duration of custody rather than the merits, an infringement of individual rights.
Addressing the issue requires administrative reforms—efficient special courts, faster trials, and courts willing to grant bail under the UAPA in deserving cases—along with judicial vigilance to ensure justice is neither delayed nor denied.
Courts should reaffirm that justice, meant to be objective and blind, must not be replaced by a system where time determines guilt or innocence.
(Nidah Kaiser holds a doctorate in politics from SOAS, University of London, and Tamanna Pankaj is a practicing lawyer in Delhi.)
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