Section 43D(5) Explained: The UAPA Clause That Barred Bail For Umar Khalid And Sharjeel Imam

Last Updated:January 05, 2026, 18:37 IST

While five co-accused were granted bail, the Supreme Court held that the ‘prima facie true’ test under Section 43D(5) placed Khalid and Imam on a different footing.

Umar Khalid and Sharjeel Imam have been in jail for over five years in the 2020 Delhi riots larger conspiracy case. (File image/PTI)

The Supreme Court’s order on Monday refusing bail to Umar Khalid and Sharjeel Imam in the Delhi riots ‘larger conspiracy’ case has brought Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA) into focus. While the Court granted bail to five other accused, it held that the statutory bar under 43D(5) still applied to Khalid and Imam because the material attributed to them indicated a “central and formative role" in the alleged conspiracy.

To understand why the Court drew this distinction, it is necessary to unpack what Section 43D(5) actually says, how courts interpret it, and why it plays a decisive role in almost every UAPA bail hearing.

What Section 43D(5) Says

The provision reads:

Section 43D(5) in The Unlawful Activities (Prevention) Act, 1967 (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

This single provision is the cornerstone of bail jurisprudence under the UAPA.

What Does This Mean In Practice?

Section 43D(5) creates a reverse burden at the bail stage:

• In regular criminal law, bail is the rule and jail is the exception.
• Under UAPA, this reverses: jail becomes the rule and bail the exception.

For a court to grant bail, it must be satisfied that there are no reasonable grounds to believe that the accusations are prima facie true.

The threshold is intentionally high. Courts cannot conduct a detailed evaluation of evidence. They only need to look at the prosecution’s case diary, charge sheet, and supplementary material to see whether, if taken at face value, the allegations meet the prima facie bar.

If they do, bail must be denied.

How The Supreme Court Has Interpreted 43D(5) Over Time

Over the years, the Supreme Court has clarified the structure of judicial scrutiny under 43D(5):

• The test is accused-specific, not collective.
• Courts must undertake a limited but meaningful prima facie evaluation.
• The defence version cannot be weighed in detail at the bail stage.
• If the prosecution’s material, taken at face value, discloses a prima facie true case, bail must be denied.

In today’s ruling, the Court repeated that 43D(5) “does not totally bar judicial scrutiny", but it imposes a statutory restraint that courts cannot lightly bypass.

Where Trial Delay Fits In

The Supreme Court today clarified a key point: delay is not a “trump card" that automatically bypasses 43D(5).

This is crucial because many UAPA accused have spent years in custody due to slow trials. While the Court has previously granted bail when delays crossed constitutional limits, those remain exceptions.

In Monday’s ruling, the Court held that the continued detention of Khalid and Imam had not yet crossed the threshold of constitutional impermissibility, particularly because protected witnesses are still to be examined.

However, the Court allowed them to renew their bail plea after one year or after key witness testimonies.

Why Some Accused Got Bail And Others Didn’t

The Court granted bail to Gulfisha Fatima, Meera Haider, Shifa Ur Rehman, Mohd Saleem Khan and Shadab Ahmed, but not to Umar Khalid and Sharjeel Imam. The distinction was grounded entirely in 43D(5).

For those granted bail: The prosecution material, even when accepted at face value, did not place them in the same central or strategic role.

For Khalid and Imam: The Court found a prima facie case of involvement in planning, mobilisation, and strategic direction that placed them on a “qualitatively different footing".

Once the Court formed this opinion, the statutory bar under 43D(5) automatically applied, making bail impermissible.

Why Section 43D(5) Is Often Criticised

Legal scholars and civil rights groups argue that:

• The provision leads to prolonged incarceration without conviction.
• Courts must rely only on the prosecution’s version at the bail stage.
• Trials in UAPA cases frequently take years due to protected witnesses, voluminous chargesheets, and procedural delays.

However, Parliament designed 43D(5) to give the State a strong preventive tool against terrorism-related offences, not just overt acts but also conspiracies, funding, and mobilisation.

What Is The 2020 Delhi Riots Case?

The 2020 Northeast Delhi riots broke out on February 24, 2020, during protests against the Citizenship (Amendment Act) (CAA) and NRC. The violence lasted several days, resulting in at least 53 deaths and over 700 injuries. The Delhi Police Special Cell filed multiple FIRs, including one under UAPA (Unlawful Activities Prevention Act, 1967) and IPC provisions alleging a “larger conspiracy" behind the violence.

The police in November 2025 said they had created three SITs under the crime branch, and there was no evidence that their officers were involved in the violence or that political leaders instigated or participated in it. They had told the high court that they had registered 757 FIRs in connection with the riots and that investigation was pending in 273 cases and trial was pending in 250.

Several petitions are pending in the High Court in relation to the riots. Petitions were made demanding that political leaders be booked for alleged hate speeches, and the formation of a special investigation team to probe the violence and FIRs against police officers. The Supreme Court, in an order of December 2021, had requested the high court to dispose of expeditiously, preferably within three months, a plea seeking registration of FIRs against politicians accused of making hate speeches, which purportedly led to the riots.

News explainers Section 43D(5) Explained: The UAPA Clause That Barred Bail For Umar Khalid And Sharjeel Imam

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