Not Proscribed, Not Prima Facie: The labyrinth of bail under UAPA By distinguishing “association” from proscribed membership, the Court reaffirmed that the constitutional guarantee of a speedy trial overrides Section 43D (5)

10, Sep 2025 | CJP Team

On August 20, 2025, the Supreme Court upheld a 2022 order of the Karnataka High Court granting bail to Saleem Khan while rejecting the bail of his co-accused Mohd. Zaid. Both were implicated in the ‘Karnataka Al-Hind ISIS module’ case and charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA). Both had been in custody for over five years without charges being framed or trial commencing: an outcome engineered by the UAPA’s structural logic, which is riddled with procedural pitfalls, definitional traps, and the carceral bail regime of Section 43D (5).

A Division Bench of Justices Vikram Nath and K.V. Viswanathan anchored its decision in two principles: first, that Section 43D (5) cannot be triggered without a prima facie link to a proscribed organisation; and second, that statutory restrictions on bail do not prevent a Constitutional Court from granting bail to protect the fundamental right to a speedy trial under Article 21.

This analysis dissects Union of India v. Saleem Khan (2025) by situating the Karnataka High Court’s reasoning within the modern bail jurisprudence under the UAPA. We trace the jurisprudence from the restrictive standard laid down in NIA v. Watali (2019), to the liberty-affirming exception carved out by Union v. K.A. Najeeb (2021), to the inclusion of a mens rea element in Thwaha Fasal. Finally, we reflect on what the Saleem Khan judgment reveals about the fragile promise of a speedy trial under the shadow of a terrorising ‘anti-terror’ law.

The Case before the Supreme Court

The case began in 2020, with an FIR registered at the Suddaguntepalaya Police Station in Bengaluru filed against 17 individuals for offenses under the UAPA, IPC, and Arms Act. The investigation was subsequently handed over to the National Investigation Agency (NIA), and re-registered as RC No. 4/2020/NIA/DLI – the ‘Karnataka Al-Hind ISIS module’ case. Saleem Khan was named as Accused No. 11 and Mohammed Zaid was named Accused No. 20. The prosecution claimed that Saleem Khan had connections with Al-Hind and the chargesheet accused him of attending “jihadi meetings.”

Khan and Zaid filed for regular bail, claiming that they had been “falsely roped in” without any link to a criminal conspiracy or terrorist organization. They cited their prolonged pre-trial detention, the lack of prima facie evidence on record, and the devastating impact of their detention on their families since they were the sole breadwinners. The Special NIA court rejected their applications invoking Section 43D(5) of the UAPA, finding that the accusations against them were prima facie true.

On appeal, the Karnataka High Court partly reversed the decision by granting bail to Khan while upholding the denial of bail to Zaid. This led to two separate appeals before the Supreme Court: one filed by the Union of India challenging the grant of bail to Khan, and another filed by Zaid challenging the rejection of his bail plea.

Submissions

At the High Court, the accused argued that there were no direct recoveries tying them to terrorist acts. The evidence was largely documentary and circumstantial, not substantive:

1. No association with Banned Group: The prosecution had not established that they belonged to a terrorist group, as “Al-Hind” is not a banned organization under Schedule I of the UAPA.
2. Vague Allegations: No dates or locations for the alleged “conspiracy meetings” and “jihadi meetings” were specified in the chargesheet.
3. Lack of Evidence for Terrorist Activity: The recovery of items like tents and knives, and the attendance of pistol training, do not constitute proof of a terrorist act.
4. Weak Witness Testimony: Witness statements about the seized materials did not directly link the accused to any terrorist activities.

The prosecution countered that both accused persons were directly involved in conspiracy meetings with other key members of the Al-Hind group, arguing that:

1. Saleem Khan was a close associate of the primary accused in the Karnataka Al-Hind ISIS module case since 2015. He played a significant role as a recruiter and organizer for the Al-Hind group.
2. Mohammed Zaid’s had a prior criminal history in another NIA case, and had attended several conspiracy meetings across multiple locations.
3. The evidence of participation in “jihadi” and martial arts training demonstrates preparation for militant activities.

Statutory analysis: Who is a ‘member’ of a terrorist organisation?

The UAPA charges pressed against Saleem Khan were Section 18 (conspiracy to commit a terrorist act), Section 18A (organising training camps), Section 20 (membership of a terrorist gang or organisation) and Section 39 (providing support to a terrorist organisation). The evidence on record for these offences were allegations of “association” with an organisation and “attendance” at group meetings. Even to an ordinary citizen, this should seem troublingly vague: what does it mean, in law, to be a “member” of a terrorist organisation?

Section 20 provides that “any person who is a member of a terrorist gang or organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which may extend to life.” However, nowhere does the Act explain what counts as “membership,” or how this is different from an “association” (Section 38) or “support” (Section 39) which carry a maximum sentence of 10 years.

In Arup Bhuyan v. State of Assam (2011), the Supreme Court had attempted to read in a measure of fairness into this provision. It held that “mere membership” of a banned organisation would not make a person criminally liable unless accompanied by an “overt act” of violence or public disorder. This modest safeguard, however, was short-lived. A 2023 review bench reversed the decision, restoring liability for “passive membership.”

Unlike companies with registers or shareholder lists, terror groups are amorphous and decentralised. The determination of “membership” therefore depends not on records, but on the perceptions and inferences of the NIA. This is a dangerous discretion to afford to an investigator when the consequence is mandatory life imprisonment. However, it is the inevitable consequence of a law which sanctifies arbitrariness, allowing life and liberty to turn on the whims of a government officer.

The Supreme Court’s ruling

While these statutory ambiguities expose the fragility of the UAPA’s scheme, the Supreme Court’s ruling in Saleem Khan turned on narrower grounds. Since the appeals before the Court were for the grant/refusal of bail, the Bench confined itself to reviewing the High Court’s order, which it ultimately found “fully justified and reasonable.”

In Saleem Khan’s case, the Court’s decision to uphold bail was anchored by the key fact that Al-Hind is not a designated terrorist organization as defined by Section 2(m) (Schedule I) of the UAPA and therefore attending meetings of the organisation would not amount to any prima facie offence. The Court further noted the 5½ year delay in the trial’s commencement, with Khan having been on bail for 3½ years, holding that it would not be “just and proper” to interfere with the order at this stage.

For Mohammed Zaid, the Court upheld the denial of bail, finding that his alleged direct involvement with a banned terrorist organization under the UAPA, his role in operating the dark web, and his prior involvement in another UAPA case justified his continued detention (the Court recorded that he had been granted bail in the second case). The Bench, therefore, signalled that ‘passive association’ without a proscribed link (Khan) cannot be equated to ‘active participation’ tied to a banned outfit (Zaid) – exemplifying how judicial reasoning under UAPA depends on crafting limits on a statute designed to operate through vagueness.

Bail under UAPA: The Inverted Logic of Section 43D(5)

The Supreme Court’s limited engagement meant that the real weight of reasoning lay with the Karnataka High Court, which grappled with the meaning of Section 43D(5) and its inverted standard for bail.

Section 43D(5) states that if the Court, after perusing the case diary and the chargesheet, finds reasonable grounds for believing that the accusation is prima facie true, then the accused cannot be released on bail. Notably, at this stage, the defence can neither submit exculpatory evidence nor cross-examine the prosecution’s case.

When judicial discretion is replaced by a prosecutorial veto, how, then, is a Court to grant bail? What counts as “reasonable grounds”? And what does it mean for a Court to believe that an accusation is “prima facie true”?

Watali and Najeeb: Jurisprudence of Suspicion or Liberty?

The Supreme Court’s judgment in NIA v. Zahoor Ahmad Shah Watali (2019) is the starting point for the modern jurisprudence on bail under the UAPA. The judgment placed extraordinary weight on the accusatory narrative, holding that at the bail stage, courts must not conduct a “detailed analysis of evidence” or reject prosecution material as inadmissible. The evidence collated by the investigating agency is to be presumed true. This interpretation cements a “jurisprudence of suspicion,” making bail under the UAPA nearly unattainable.

Union of India v. K.A. Najeeb (2021) carved out an exception to Watali’s strict faith in prosecutorial evidence. The Supreme Court observed that Section 43D(5) is not the sole standard, but “merely another possible ground” to deny bail. It ruled that the straitjacket of Section 43D(5) cannot justify keeping an accused in custody indefinitely; when trial delays cross the threshold of reasonableness, Article 21 demands release on bail.

Since Watali entrenched a near-insurmountable standard for bail by presuming the prosecution’s material to be true, subsequent courts have negotiated with its rigidity by relying on Najeeb’s deference to a speedy trial to carve out space for liberty.

Thwaha Fasal: Intention as the Threshold

Thwaha Fasal v. Union of India (2021) adopted the liberty-approach, building on Najeeb to hold that there must be an element of “mens rea” discernible from the facts and circumstances to constitute an offence of membership or support of a terrorist organisation.

The case began when a Sub-Inspector in Kozhikode assessed that three students were “standing in suspicious circumstances” in front of a laboratory. Seeing a police vehicle, one of them ran away while the other two were intercepted. The officer searched their bags and uncovered ‘radical literature’ – books like ‘Caste issues in India,’ notes written by Rosa Luxemburg to Lenin, protest posters and pamphlets, et cetera. They were arrested and charged with UAPA Sections 20 (punishment for being a member to a terrorist gang or organization); 38 (offences relating to membership of a terrorist organization); and section 39 (offences relating to support given to a terrorist organization) with the investigators alleging that they were members of the banned Communist Party of India (Maoist). Of the two, Thwaha Fasal was denied bail by the High Court leading to his appeal before the Supreme Court.

The Bench of Justices Ajay Rastogi and Abhay S. Oka granted bail, ruling that “mere association” or “mere support” is insufficient for offences under the above sections: what must be shown is an intention to further the activities of a terrorist organisation, discernible from overt acts (echoing the distinction between active and passive membership drawn in Arup Bhuyan). The Court adhered to the standard set by Watali of not conducting a “mini-trial” at the bail stage, but emphasised Section 43D(5) cannot override constitutional guarantees, as held by Najeeb. Thus, where the material fails to disclose intent or where prolonged pre-trial detention violates Article 21, bail becomes a constitutional imperative.

The Saleem Khan Case at the Karnataka High Court

The articulation of the essential ingredients constituting “membership” directly fortified the Karnataka High Court’s analysis in Saleem Khan. The Court affirmed that it was not to weigh the merits of the evidence but to consider the chargesheet material as it stands. At the same time, it stressed the need to “strike a balance” between Section 43D and the rights of the accused. To guide this assessment, the Court identified the following circumstances as relevant to deciding whether there exist “reasonable grounds” to believe that the accusations are prima facie true:

1. Whether the accused is associated with any prohibited organisation under the Act
2. Whether the accused was convicted of offences involving terrorist activities (or though acquitted on technical grounds, was held associated with terrorist activities)
3. Whether explosives of the category used in the crime were recovered from the accused
4. Whether any eyewitness or mechanical device (CCTV) indicates the accused’s presence at or around the scene
5. Whether the accused was arrested soon after the occurrence based on available clues

Applying these factors, the Court observed that Al-Hind was not a proscribed organisation; no explosive material had been recovered; no eyewitness or CCTV evidence placed him at the scene; nor had he been convicted of any terrorism-related offences. Therefore, it concluded that there were no reasonable grounds for believing the accusation against Saleem Khan to be prima facie true

Fragile Promises, Carceral Realities

The judgment in Saleem Khan reinforces the principle articulated in Najeeb: that the right to a speedy trial under Article 21 cannot be eclipsed by statutory bail restrictions under Section 43D (5). The Court was categorical that no accused can be allowed to “languish in jail without being given a fair and speedy trial.” Noting that Khan’s co-accused, Mohd. Zaid, had already spent 5½ years in custody without a trial, it directed the trial court “expedite the trial” and conclude it “within a period of two years,” while also requiring the prosecution to ensure full cooperation in leading evidence and completing the proceedings within the stipulated time.

But the promise of a “speedy trial” is not enough. In practice, even the process of securing a bail hearing is long and arduous. Although lapse of time is, in principle, an objective factor under Article 21, many lower courts treat it as operative only once the undertrial has served more than half the maximum sentence. This perverse inversion normalises prolonged incarceration and reflects the deeply carceral mentality embedded in our justice system. Under an overbroad anti-terror law, the senseless violence of a ‘terrorist’ and the democratic dissent of a revolutionary are two sides of the same coin: both are held hostage to the state’s conspiracies and routinely warehoused as undertrials on the mere strength of an accusation.

(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Raaz)

Related:

How difficult is it to obtain Bail under the UAPA?

Mere association or support to terror organisation, not sufficient to attract UAPA: SC

Liberty under Siege: Reclaiming the right to speedy trial from the grip of special laws