India’s Unlawful Activities (Prevention) Act, 1967 (“UAPA”) was originally enacted to regulate “unlawful associations”. Later amendments included a definition of “terrorist act” (2004), created the restrictive bail bar in Section 43D(5) (2008), and allowed the State to designate individuals as “terrorists” (2019). Its increasing invocation against lawful protests raises serious criminal-procedure and constitutional concerns. 

On 2 September 2025, the Delhi High Court (HC) denied bail to Umar Khalid and eight others, noting that the case was moving at a “natural pace,” although Khalid has been in custody since September 2020 and the trial has not begun. He faces several charges under Sections 13 and 15-18 of UAPA and multiple Indian Penal Code charges for an alleged “larger conspiracy” behind the February 2020 Delhi riots, which killed 53 people, mostly Muslims, and damaged more than 1,500 properties during the Citizenship Amendment Act protests.

Across courts, adjudication of Khalid’s case has relied more on inference than evidence. In March 2022, the Sessions Court denied him bail, citing anonymous and contradictory witnesses, WhatsApp group memberships, a “flurry” of calls after violence began, and a speech that referenced Donald Trump’s visit. In October 2022, the Delhi HC affirmed the trial court order, reading Khalid’s references to “chakka-jam” (roadblockade) and “inquilab” (revolution) as potentially not bloodless, despite repeated calls for non-violence in the same speech. The Supreme Court (“SC”) listed Khalid’s appeal multiple times in 2023-24 without a substantive hearing. Finally, on 2 September 2025, the Delhi HC denied him bail, adopting an ‘eyes shut approach’ while noting 30,000 pages of evidence and dozens of witnesses still to be examined. It characterised the violence as a “premeditated, well-orchestrated conspiracy” and Khalid as the “intellectual architect” [paras 136 & 148], even though he was not in Delhi when the riots broke out.

Parity in granting bail is one of the many principles that Khalid’s case violates. In 2021, the Delhi HC granted bail to Devangana Kalita and two others, separating evidence from prosecutorial inference and holding that even aggressive protest tactics did not satisfy the definition of a terrorist act in section 15 of UAPA without specific violent acts. Similarly, the Bombay HC in Iqbal Ahmed insisted on specific evidence even in UAPA cases [para 33]. However, in Khalid’s case, similar tools of protest, including chakka-jam, were read as indicia of terrorism despite their across-the-board use in Indian politics, including the farm law protests and by the ruling party in 2011 and 2021-22.

UAPA’s bail threshold has shifted coercive power to the pre-trial stage. Section 43D(5) requires denial of bail if accusations appear “prima facie true” without defining that standard. In 2019, Watali narrowed the scope of bail scrutiny by directing courts to presume the prosecution’s case at face value. However, in 2021, K.A. Najeeb recognised that constitutional courts may still grant bail when prolonged trials make continued custody disproportionate to the maximum sentence prescribed for the alleged offence. That principle squarely applies to Khalid.

Trends of conveniently using UAPA to stifle dissent are constitutionally troubling. Treating protest tools like chakka-jams and coordination calls as “terrorism” burdens Article 19(1)(a) and (b). Differential treatment between similarly placed accused raises concerns of equality before law under Article 14. Prolonged pre-trial incarceration and a continuing reliance on protected witnesses and contradictory evidence undermine Articles 21 and 22. Given chronic delays, denial of bail often becomes a ‘mini-trial’ and decides the case in practice.

UAPA faces sustained judicial challenges. Multiple petitions, such as Sajal Awasthi and APCR, have challenged sections 35-36 and the 2019 amendment to UAPA, which allowed an individual to be designated as a “terrorist”. Other cases, including Mukesh v. State of Tripura, pertaining to the Tripura violence, commonly challenge the vagueness of multiple definitions, procedural safeguards, and the criminalisation of possession of certain literature or philosophy. A common thread in all these cases is the use of UAPA against journalists, activists, and lawyers.

Independent and international assessments amplify these concerns. In October 2022, a report of former judges and secretaries reviewing the Delhi riots prosecutions found no substantiating evidence to support terrorism charges against Khalid. Amnesty International has described the continued denial of bail as a blow to free expression and peaceful assembly. The UN High Commissioner has repeatedly urged restraint and the release of persons detained for dissent. Such practices conflict with India’s obligations of presumption of innocence and fair trial guarantees under Article 10 of the UDHR and Article 14(2) of the ICCPR.

The human cost of UAPA is alarming. Father Stan Swamy’s death in custody shows how UAPA’s bail restrictions convert accusation into punishment. Multiple civil-society reports and the National Crime Records Bureau-based analyses indicate low conviction rates of around 3% relative to arrests under UAPA.

Enforcement of UAPA shows a dual standard across the political spectrum, with reports of disproportionate targeting of minorities and protest-leaders, while individuals aligned with the ruling party implicated in provocative speech received quick relief. Khalid was denied a substantive SC hearing through to 2023, raising concerns about the unchecked discretion of the Chief Justice as master of the roster. At the same time, the controversial Digital Personal Data Protection Act, 2023, grants excessive state surveillance powers, compounding risks for dissenters already exposed to UAPA. Given the present democratic context, it is crucial to see whether the SC, in appeal, will apply Articles 14, 19, and 21 and the principle in Najeeb to ensure that UAPA remains a law against terrorism and not a pre-trial instrument to suppress dissent.