2026 Supreme(SC) 4

SUPREME COURT OF INDIA
ARAVIND KUMAR, N.V. ANJARIA, JJ.
Gulfisha Fatima – Appellant
Versus
State (Govt. of NCT of Delhi) – Respondent
Criminal Appeal No. 11 of 2026 (Arising out of SLP (Crl.) No. 13988 of 2025) With Criminal Appeal No. 16 of 2026 (Arising out of SLP (Crl.) No. 14030 of 2025) With Criminal Appeal No. 12 of 2026 (Arising out of SLP (Crl.) No. 14132 of 2025) With Criminal Appeal No. 17 of 2026 (Arising out of SLP (Crl.) No. 14165 of 2025) With Criminal Appeal No. 13 of 2026 (Arising out of SLP (Crl.) No. 14859 of 2025) With Criminal Appeal No. 14 of 2026 (Arising out of SLP (Crl.) No. 15335 of 2025) With Criminal Appeal No. 15 of 2026 (Arising out of SLP (Crl.) No. 17055 of 2025)
Decided On : 05-01-2026

IMPORTANT POINTS
(1) Right to personal liberty enshrined under Article 21 is of seminal importance, and prolonged pre-trial incarceration is a matter of serious constitutional concern – At the same time, where Parliament has, in context of a special statute, conditioned grant of bail upon satisfaction of a defined statutory threshold, a constitutional court cannot treat such restraint as avoidable.
(2) Bail – Gravity of incidents cannot eclipse constitutional demand for individualized assessment of necessity in pre-trial detention – Prolonged incarceration premised solely on seriousness of allegations, absent a proximate and continuing nexus between appellant and threats to administration of justice, would amount to a punitive measure inconsistent with settled principles.
(3) Terrorist activity – Once prosecution itself projects varying degrees of proximity, control, and participation, law mandates an individualised assessment of culpability, particularly in context of stringent penal provisions – Alleged role of an accused at the level of ideological articulation or protest coordination cannot, without a demonstrable and proximate nexus to acts of violence, be equated with role of those alleged to have engaged in facilitation of riots or violent acts.
(4) Bail – Preference – Gender, while not conferring immunity from criminal law, remains a relevant consideration in determining necessity of continued pre-trial detention.
(5) Pre-trial incarceration cannot, by mere passage of time, be permitted to assume character of punishment.

Headnote:

(A) Constitution of India – Article 21 – Unlawful Activities (Prevention) Act, 1967 – Section 43D (5) – Right to life and personal liberty – Article 21 occupies a central place in constitutional scheme – Right to life and personal liberty, and insistence that any deprivation must conform to procedure established by law, are foundational guarantees – Right to speedy trial has been recognised as an important facet of this guarantee – Pre-trial incarceration cannot, by mere passage of time, be permitted to assume character of punishment – At the same time, Article 21 has never been understood as operating in isolation from law – Constitutional promise is not that liberty will be unregulated, but that deprivations of liberty will not be arbitrary, unconscionable, or unfair – Expression “procedure established by law” reflects that balance – UAPA, as a special statute enacted to address offences alleged to affect security of State and stability of civic life, represents a legislative judgment as to conditions under which bail may be granted at pre-trial stage – Section 43D(5) of UAPA embodies exercise of that judgment – constitutional inquiry into delay is not an inquiry into guilt. It is an inquiry into whether continued detention remains constitutionally permissible in the circumstances of the case. That inquiry is necessarily contextual – Delay cannot be treated as a solitary determinant – Proper constitutional question is not whether Article 21 is superior to Section 43D (5) – Proper question is how Article 21 is to be applied where Parliament has expressly conditioned grant of bail in relation to offences alleged to implicate national security – Law does not contemplate an either-or approach – Nor does it contemplate an unstructured blending of statutory and constitutional considerations – What is required is disciplined judicial scrutiny that gives due regard to both. (Paras 30, 31, 34 and 35)

(B) Unlawful Activities (Prevention) Act, 1967 – Sections 43D (5) and 15 – Criminal Procedure Code, 1973 – Section 439 [Section 483 of BNSS] – Bail applications – Rejection – Delhi riots – Prosecution case is founded on allegations of a pre-planned criminal conspiracy involving several accused persons, including appellants – It is alleged that conspiracy was hatched with object of orchestrating riots in National Capital Territory of Delhi as a form of protest against enactment of Citizenship Amendment Act, 2019 and proposed National Register of Citizens – Extensive damage to life and property was caused – Appellants may not stand on identical factual footing in all respects with co-accused whose appeal was considered by High Court – This is not a casual prosecution, nor one involving a narrow factual canvas – Law has taken its course, at a pace dictated by complexity of case, number of accused, and the nature of issues raised – Constitutional concern arising from prolonged custody is acknowledged, but it does not, on present record, translate into a finding that continued detention has become punitive or unconscionable solely by reason of delay – Prolonged custody, though a matter of concern, does not operate as automatic ground for grant of bail where statutory threshold continues to be attracted – Record does not support absolute proposition that appellants have remained “innocently incarcerated” without any contribution to delay, nor does it disclose a situation where delay is so wholly unjustified as to override statutory embargo contained in Section 43D(5) – Plea of delay in facts of particular case, does not warrant enlargement on bail, though it justifies continued judicial emphasis on timely conduct of proceedings. (Paras 40, 41, 42 and 43)

(C) Unlawful Activities (Prevention) Act, 1967 – Sections 43D (5) and 15 – Criminal Procedure Code, 1973 – Section 439 [Section 483 of BNSS] – Bail applications – Rejection – Delhi riots – Consideration must also be given to integrity of trial process and risks associated with release – Depending on nature of case, these may include possibility of influencing witnesses, tampering with evidence, or undermining fairness of proceedings – In prosecutions alleging organised activity, assessment of such risks may differ from that in ordinary criminal cases – This is not to presume guilt, but to recognise that bail decisions are necessarily forward-looking in terms of ensuring an effective trial – Court must also bear in mind that it is not confined to a binary choice between continued custody and unconditional release – Where delay becomes a matter of constitutional concern, appropriate directions for expeditious trial, prioritisation of witnesses, or periodic review of progress may be issued – Such measures are constitutionally significant responses that address vice of delay while respecting statutory framework – Liberty to renew prayer for bail upon continued stagnation may also be preserved – In prosecutions alleging threats to public order and national security, Court cannot be unmindful that both dimensions are engaged – Constitutional order is not served by an approach that treats liberty as sole value and societal security as peripheral – Both must be accommodated through reasoned adjudication – When composite evaluation yields a clear conclusion that continued detention has crossed bounds of constitutional permissibility that Court may justifiably intervene notwithstanding statutory restrictions. (Paras 49, 50, 51 and 57)

(D) Unlawful Activities (Prevention) Act, 1967 – Sections 43D (5) and 15 – Criminal Procedure Code, 1973 – Section 439 [Section 483 of BNSS] – Bail applications – Rejection – Delhi riots – Discipline imposed by Section 43D(5) necessarily circumscribes nature of judicial scrutiny permissible at bail stage – Court is not called upon to weigh probative value of evidence, to assess its admissibility, or to determine whether prosecution version will ultimately withstand trial – Any exercise approximating a mini-trial at this stage would transgress statutory boundary deliberately drawn by Parliament – In cases alleging conspiratorial conduct, it becomes necessary to distinguish between existence of a conspiracy and position occupied by an accused within alleged framework – While conspiracy may supply overarching context, Section 43D(5) requires attention to nature, extent, and character of participation attributed to individual – Section 43D(5) operates as a gatekeeping provision – It requires Court to undertake a focused, accused-specific, and legally disciplined inquiry, confined to determining whether prosecution material, taken at its highest, satisfies statutory threshold of prima facie truth – Bail stage under Section 43D(5) is not a forum for evaluating defences, weighing evidence, or conducting a mini-trial – Judicial restraint at this stage is not abdication of duty but fulfilment of statutory mandate. (Paras 72, 76, 78, 79 and 80)

(E) Unlawful Activities (Prevention) Act, 1967 – Sections 15 and 18 read with Section 43D(5) – Terrorist activity – To construe Section 15 as limited only to conventional modes of violence would be to unduly narrow the provision, contrary to its plain language – Apart from death or destruction of property, the provision expressly encompasses acts which disrupt supplies or services essential to life of community, as well as acts which threaten economic security of nation – Whether particular conduct ultimately attracts Section 15 directly, or Section 18 read with Section 15, depends upon role attributed and statutory ingredients alleged to be satisfied – At the stage of consideration under Section 43D(5), Court is not required to finally classify conduct or determine precise provision under which liability would ultimately arise – Enquiry is confined to whether, on prosecution material taken at face value, there are reasonable grounds for believing that accused’s conduct bears a prima facie nexus to a terrorist act as defined under the Act, whether as a direct participant or as a conspirator or facilitator – Application of law must necessarily turn on role attributed to each accused, nature of material relied upon, and manner in which courts below have appreciated the same. (Paras 87, 88, 90, 91 and 94)

(F) Unlawful Activities (Prevention) Act, 1967 – Sections 43D (5) and 15 – Criminal Procedure Code, 1973 – Section 439 [Section 483 of BNSS] – Bail applications – Rejection – Delhi riots – All appellants do not stand on equal footing as regards culpability – Allegations against principal accused indicate a central and directive role in conceptualising, planning, and coordinating alleged terrorist act, whereas material against certain co-accused reflects conduct of a subsidiary or facilitative nature – Hierarchy of participation, emerging from prosecution’s case itself, requires Court to assess each application individually, rather than proceed on premise of equivalence – Such differentiation is intrinsic to criminal adjudication and operates irrespective of uniformity of charges framed – In case of alleged masterminds, prosecution material comprises direct, corroborative, and contemporaneous evidence, including recoveries, digital communication trails, and statements indicative of managerial responsibility – In contrast, involvement of others is sought to be established mainly through associative or peripheral conduct – Where evidentiary strength varies materially between accused persons, need for continued detention likewise varies – Detention that remains necessary to secure ongoing prosecutorial objectives for principal offenders may not retain same necessity for those of limited attribution – Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances – Differentiation is not an exception to conspiracy law, but a constitutional discipline imposed upon exercise of bail jurisdiction – Once prosecution itself projects varying degrees of proximity, control, and participation, law mandates individualised assessment of culpability, particularly in context of stringent penal provisions – Bail declined to masterminds [Umar Khalid and Sharjeel Imam] – Bail granted to five other co-accused, on stringent terms and conditions. (Paras 97, 98, 99, 101, 103, 109, 409 and 433)

(G) Criminal Procedure Code, 1973 – Section 439 [Section 483 of BNSS] – Unlawful Activities (Prevention) Act, 1967 – Sections 43D (5) and 15 – Constitution of India – Article 15(3) – Bail – Preference – Gender, while not conferring immunity from criminal law, remains a relevant consideration in determining necessity of continued pre-trial detention – Law does not envisage incarceration as a measure of deterrence at pre-trial stage, particularly where individual concerned is a woman with no prior criminal antecedents and whose alleged actions stem from a ground-level facilitating role – Appellant’s continued detention must also be weighed against constitutional imperative to ensure that administration of criminal justice does not operate in a manner that disproportionately burdens women, especially where investigative agency has concluded its inquiry against her and no custodial interrogation is sought – While gender alone cannot dictate outcome, it forms a legitimate factor in proportionality assessment under Article 21 – In present factual matrix where appellant’s alleged participation lacks strategic centrality attributed to principal conspirators this consideration reinforces conclusion that her pre-trial liberty can be secured through appropriate conditions rather than prolonged incarceration. (Paras 420 and 425)

Facts of the case:

These appeals arise out of common judgment and order passed by High Court of Delhi in Criminal Appeal No. 184 of 2022 and connected matters, by which High Court affirmed rejection of bail applications filed by appellants. Appellants stand arraigned as accused in FIR No. 59 of 2020 registered by Crime Branch, Delhi, arising out of incidents that occurred in several parts of National Capital Territory of Delhi in February 2020. At the inception, appellants were booked under Sections 147, 148, 149 and 120B of Indian Penal Code. Upon completion of investigation, charge-sheet came to be filed alleging offences under Sections 120B read with Sections 109, 114, 124A, 147, 148, 149, 153A, 186, 201, 212, 295, 302, 307, 341, 353, 395, 420, 427, 435, 436, 452, 454, 468, 471 and 34 of IPC, as also under Sections 13, 16, 17 and 18 of Unlawful Activities (Prevention) Act, 1967, Sections 25 and 27 of Arms Act, and Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984.

Findings of Court:

Having regard to the nature of prosecution and period of incarceration already undergone, it is considered appropriate to direct that Trial Court shall proceed with the matter with due expedition and shall endeavour to ensure that examination of witnesses, particularly protected witnesses relied upon by the prosecution, is taken up and carried forward without delay.

Trial Court shall remain free to adopt such measures as are permissible in law to ensure that trial proceeds with continuity and at a reasonable pace, consistent with requirement of fairness and orderly administration of criminal justice.

Result : Appeals partly allowed.