On July 21, the Delhi High Court refused to stay the bail granted to human rights defender Khurram Parvez and Kashmiri journalist Irfan Mehraj in a 2020 UAPA case, even while holding that the trial court had failed to carry out the statutory exercise required under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967.
The order is significant not merely because Parvez and Mehraj have been allowed to remain out on bail, but because it exposes a deeper fault line in India’s anti-terror prosecution regime. Both men have been in custody since March 2023, yet, more than three years later, charges have still not been framed in the case.
The High Court has now held that the trial court’s reasoning for granting bail was legally incomplete because it did not undertake the prima facie assessment mandated by Section 43D(5). The Bench also noted that the prosecution’s chargesheet contains documentary material that the trial court ought to have considered.
“Thus, the trial court’s reasoning is two-pronged i.e.,
- that the evidence is based on oral testimony and
- further that the trial is likely to be delayed further, as charges are yet to be framed in the matter.
However, a perusal of the chargesheet would show that there is in fact documentary evidence which is relied upon by the NIA. Therefore, there ought to have been a discussion in this regard in the impugned orders. The ld. Trial Court is not a Constitutional Court and ought to, in the prima facie opinion of this Court, strictly have gone by the mandate of the statute.” (Para 21)
“Under these circumstances, at the stage of granting bail, this Court would have to consider the mandate of Section 43D(5) of the UAPA and reach a prima facie finding on the allegations raised by the NIA. However, since the impugned orders are orders where bail has been granted by the ld. Trial Court and various conditions have been imposed, this Court is not inclined to stay the operation of the impugned orders.” (Para 22)
At the same time, the High Court declined to put the bail orders on hold and instead imposed a fresh set of restrictions, including twice-weekly reporting to the NIA, a prohibition on participation in programmes and meetings concerning issues similar to those involved in the case, restrictions on communication with persons named in the chargesheet, and a bar on association with organisations linked to the subject matter of the prosecution.
The result is a striking judicial compromise: the High Court has criticised the legal reasoning behind the grant of bail, but has nevertheless refused to undo the liberty that the bail order has restored.
That distinction matters because the central question raised by the case is not simply whether Parvez and Mehraj should remain on bail. It is whether the extraordinary difficulty of obtaining bail under the UAPA, combined with the slow pace of trials, can effectively turn pre-trial detention into punishment before conviction.
The arrest-to-trial gap is the real story
The case against Parvez and Mehraj stems from FIR No. RC-37/2020/NIA/DLI, registered by the National Investigation Agency on October 8, 2020. The two were subsequently chargesheeted as Accused Nos. 1 and 2 in September 2023, with the prosecution invoking provisions of the IPC as well as several provisions of the UAPA, including Sections 17, 18, 22A, 22C, 38, 39 and 40.
What makes the timeline particularly striking is that the High Court’s order records that Parvez has been in custody since March 22, 2023, while Mehraj has been in custody since March 20, 2023, and yet, when the trial court granted them bail in July 2026, charges had still not been framed.
The trial court itself had recognised the likely delay in the proceedings. In Parvez’s case, it noted that the allegations were primarily based on oral testimony whose veracity would have to be tested during trial, a process that was likely to take considerable time. In Mehraj’s case, the trial court similarly observed that the prosecution’s allegations were substantially based on oral testimony and that the trial was unlikely to conclude in the near future. It also recorded that Mehraj had joined the investigation whenever he had been called before his arrest.
This is where the case moves beyond the narrow question of bail. A criminal prosecution is supposed to culminate in a trial, and a trial is supposed to test the evidence relied upon by the prosecution. A conviction, if warranted, is then supposed to follow only after guilt has been established in accordance with law.
When a person is detained for years under a statute that makes bail exceptionally difficult, while the trial remains stuck before the framing of charges, the constitutional promise of personal liberty begins to look increasingly fragile. The State may insist that the accused are dangerous, and the prosecution may invoke national security, but neither the seriousness of the allegations nor the invocation of national security changes the fundamental legal position that the accused have not been convicted.
The danger is that when the process itself takes years, imprisonment before trial can begin to resemble the punishment that the law reserves for a person only after conviction. That is not an argument against prosecuting serious offences. It is an argument for ensuring that serious prosecutions are brought to trial with seriousness and speed.
The NIA’s Case: Terror financing, secession and alleged militant links
According to the NIA’s chargesheet, Parvez was associated with the Jammu & Kashmir Coalition of Civil Society (JKCCS) and allegedly used his position to facilitate activities that the agency characterises as secessionist and linked to banned terrorist organisations. The NIA alleges that Parvez was involved in raising and routing funds and in providing financial support to families of Hizbul Mujahideen cadres. The agency has also alleged links with Hizbul Mujahideen commanders, the Jammu & Kashmir Affectees Relief Trust and Pakistan’s Inter-Services Intelligence.
The prosecution further alleges that Parvez facilitated the recruitment of local youth into terrorist ranks and maintained contacts with various organisations and individuals associated with the Kashmir separatist movement.
The allegations against Mehraj are similar. The NIA alleges that Mehraj worked as a researcher and volunteer with JKCCS, was closely associated with Parvez, and formed part of what the prosecution describes as a wider conspiracy promoting a secessionist agenda.
The agency further alleges that Mehraj maintained contact with persons linked to Hizbul Mujahideen, assisted in receiving funds and played a role in their alleged distribution. These allegations constitute the prosecution’s case and remain to be established through the judicial process. They are not findings of guilt, and the accused remain entitled to the presumption of innocence until their guilt is proved in accordance with law.
The UAPA’s Paradox: The harder the bail, the longer the incarceration
The case also highlights the particular difficulty created by Section 43D(5) of the UAPA. Under the provision, a court must be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie not true before bail can ordinarily be granted. This creates an exceptionally high threshold for an accused seeking release.
The accused is not merely required to satisfy the conventional considerations governing bail. The court must also engage with the prosecution’s case at a preliminary stage and determine whether the allegations appear prima facie true. The consequence can be severe because, when bail is denied, the accused remains incarcerated, and when the trial moves slowly, that incarceration can continue for years.
If charges are not framed, the evidence is not fully tested, and if witnesses have not been cross-examined, their credibility remains unresolved. Yet, during that entire period, the accused can continue to remain behind bars. This is the paradox at the heart of the UAPA bail regime.
The stringent statutory threshold is intended to protect the State against serious threats, but when it operates alongside prolonged investigations, voluminous chargesheets and slow-moving trials, it creates the possibility that the denial of bail itself becomes the most consequential punishment imposed on an accused person long before a court determines whether that person is actually guilty.
The case of Parvez and Mehraj brings that concern into sharp relief because both men have spent more than three years in custody while the trial has yet to reach the stage of framing charges.
The High Court order
The High Court’s criticism of the trial court: The NIA challenged the bail orders on the ground that the trial court had failed to comply with the mandatory requirement of Section 43D(5). Senior Advocate Madhav Khurana, appearing for the agency, argued that the trial court had essentially granted bail because the trial was at an early stage and because the prosecution’s case was based largely on oral evidence.
The NIA argued that this approach ignored the statutory test and failed to account for the seriousness of the allegations. The agency also contended that the release of the accused could have consequences for national security. The defence opposed the NIA’s attempt to stay the bail orders.
It argued that the trial court had considered the allegations and had imposed stringent safeguards before granting bail. The defence also contended that a bail order should not ordinarily be interfered with except in exceptional circumstances. The defence further relied upon an earlier Delhi High Court order granting bail to Parvez in another UAPA case, arguing that there was an overlap between the allegations in the two matters and that the NIA had not challenged that earlier order.
The High Court ultimately found that the trial court’s approach did not go far enough. The Bench held that the trial court had failed to arrive at the conclusion required under the proviso to Section 43D(5) regarding the prima facie position of the accusations against the accused. The High Court also identified what it regarded as a significant omission in the trial court’s reasoning.
While the trial court had proceeded on the basis that the allegations were primarily founded on oral testimony, the High Court, after examining the chargesheet, found that the NIA had also relied upon documentary evidence. The Bench held that this documentary material ought to have been discussed in the bail orders.
The Court further observed that a trial court dealing with bail under the UAPA must strictly follow the statutory mandate and undertake the prima facie assessment required under Section 43D(5).
But the High Court draws the line at sending them back to jail: This is perhaps the most important part of the judgment. Despite finding a serious deficiency in the trial court’s application of Section 43D(5), the High Court refused to stay the bail orders.
The Bench noted that the trial court had already granted bail subject to several conditions and declined to suspend the operation of those orders. The High Court also made it clear that it was not expressing any opinion on the merits of the allegations at this stage. Instead of ordering the accused back into custody, the Court imposed additional restrictions.
The accused must now report to the NIA’s Chief Investigating Officer twice a week, every Tuesday and Friday, at the agency’s headquarters in Lodhi Road. They have been restrained from participating in activities similar to those forming the basis of the prosecution case and from associating with groups or organisations linked to the subject matter of the FIR, including JKCCS.
They have also been barred from participating in or attending programmes, rallies, gatherings or meetings concerning issues similar to those involved in the case, whether physically or virtually, until the conclusion of the trial. The restrictions further prohibit the circulation of posts, literature, handbills, posters and banners in any form.
The accused have also been prohibited from communicating with co-accused and persons named in the case materials or allegedly involved in similar activities. They may communicate with close relatives and family members, but cannot meet or communicate with persons or organisations named in the chargesheet. These conditions operate in addition to those already imposed by the trial court.
Parvez was represented by senior advocate Tanvir Ahmed Mir, along with Advocates Swati and Kartik Venu while advocate Jawahar Raja represented Mehraj.
A bail order that comes with an extraordinary degree of restraint
The irony of the order is difficult to overlook. The High Court has restored liberty to the accused, but that liberty comes with an extraordinary degree of surveillance and restriction. Parvez and Mehraj are free from custody, but they must report twice every week to the investigating agency. They are permitted to interact with their families, but their communications with persons named in the chargesheet are restricted. They cannot participate in public programmes, rallies or meetings concerning issues similar to those involved in the case. They cannot circulate literature, posters, banners or other material. They cannot associate with organisations linked to the subject matter of the prosecution.
Such conditions raise a broader question about the meaning of liberty after bail has been granted. If the criminal justice system presumes a person innocent until conviction, the extent to which restrictions can be imposed on a person released on bail before they begin to resemble a form of preventive restraint deserves careful judicial scrutiny. That question becomes particularly important when the trial itself has not yet begun in earnest. The High Court’s order does not answer that question, but it brings the issue sharply into focus.
There is a tendency in national security cases to treat the invocation of the UAPA as though it ends the conversation about individual liberty. It should not. The seriousness of an allegation does not eliminate the requirement of a fair and timely trial. The invocation of terrorism-related offences does not suspend the presumption of innocence.
National security is undoubtedly a compelling state interest, but it cannot become a blanket answer to every question concerning prolonged pre-trial incarceration. The State has every right, and indeed a duty, to investigate credible allegations of terror financing and links with banned organisations. At the same time, the State also has a duty to prosecute those cases efficiently and to ensure that criminal proceedings do not remain in limbo for years.
If the prosecution believes, it possesses a compelling documentary record, financial trail, communications evidence and witness testimony, that material must ultimately be brought before the trial court and tested through the judicial process. The criminal justice system cannot indefinitely rely on the gravity of allegations as a substitute for adjudication. That is the central tension in the Parvez-Mehraj case.
The NIA maintains that the allegations are grave enough to justify continued incarceration. The defence maintains that the accused have already spent years in custody without trial and that the prosecution’s evidence must be tested in court. The High Court has, for now, chosen a middle path by acknowledging the deficiencies in the trial court’s bail reasoning while refusing to reverse the grant of bail.
Trial to continue, while the bail battle remains alive
The High Court has directed the respondents to file their replies to the NIA’s appeals, with rejoinders to follow. The proceedings before the trial court have also been directed to continue. The Bench has specifically clarified that the July 18 bail orders shall not be treated as precedent in any other case because those orders remain under challenge before the High Court. The matter is next listed for August 24, 2026.
For now, Parvez and Mehraj remain on bail, although under a formidable set of restrictions. The larger legal battle, however, is far from over. The case is no longer only about whether two accused persons should remain free pending trial. It has also come to represent a larger question about the operation of India’s stringent anti-terror laws and the constitutional cost of prolonged pre-trial incarceration.
The question is whether a system that makes bail exceptionally difficult can also afford to move slowly when personal liberty is at stake. The answer cannot simply be that the allegations are serious. The answer must ultimately come from a trial.
The complete order may be read below:
Related:
Release Kashmiri HRD Khurram Pervez immediately & unconditionally: International HR Fora