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[This Article is authored by Vaneet Kumar, a Fifth-Year Law Student at Jindal Global Law School]

 Introduction

On 5 December 2025, the Supreme Court of India in Tonlong Konyak v. State of Assam granted bail to a person accused under the Unlawful Activities (Prevention) Act, 1967 (“UAPA”). The distinct factor of this case is the prolonged period of two years during when the accused was jailed in the absence of a charge sheet. This order of the apex Court was pronounced in an appeal preferred against the Gauhati High Court’s order that refused to liberate the Konyak on bail. The reason for such refusal was his status as a non-Indian citizen who had entered the country without authorisation. This piece seeks to analyse the intersection of UAPA, bail, and an unauthorised non-citizen in both orders, especially from the perspective of statutory interpretation and rights-based approach.

UAPA Provisions: (Dis)allowing Bail

It is not an unknown fact that the UAPA, which aims to curb terrorism, is equipped with a draconian bail provision contained in its section 43D, especially sub-section 5. As per NIA v. Zahoor Ahmad Shah Watali, it requires the court to both peruse ‘only’ the case diary or charge sheet and allow the public prosecutor to oppose the bail. If the court ultimately believes that the accusation is prima facie true (a much lower standard than a reasonable belief), the court cannot release the accused on bail. To this restriction is added sub-section 7, which prohibits bail to a non-citizen accused, such as Konyak, who entered India unauthorizedly, except in “exceptional circumstances”.

Thus, even if the court does not believe that the accusation is prima facie true, it cannot release the likes of Konyak because of the latter sub-clause. This is one of the factors that played into the denial of bail by the Gauhati High Court in the instant case (para 17). However, there is an equally liberating sub-section 2, which requires the court to ‘mandatorily’ release an accused if the chargesheet is not filed within the period prescribed therein. This prescribed period is ninety days, unless it is extended by the trial court up to one hundred and eighty days. The Supreme Court utilised this sub-clause to release the accused on bail (para 9). This interplay of sub-sections 2 and 7, utilised by the constitutional courts of the country, towards opposite outcomes has created an illusion of interpretational conflict, which the Supreme Court unfortunately did not address explicitly.

Conflict in Interpretation

Before proceeding to resolve this interpretational conflict, it is pertinent to distinguish the nature of proceedings under sub-sections 5 and 2. While the former sub-section governs a ‘discretionary’ proceeding which results in a ‘regular bail’, the latter sub-section 2 governs a ‘mandatory’ judicial action that results in a ‘default bail’. Thus, despite having seemingly similar outcomes, that is, bail, the rules for these outcomes are different. In light of this understanding, the author shall posit my resolution to this ostensible conflict of sub-sections 2 and 7.

It is pertinent to note that sub-section 7 begins with the phrase, “notwithstanding anything contained in sub-sections (5) and (6)”. Thus, on the plain reading, sub-section 7 is not designed to override sub-section 2. However, even if “no bail shall be granted” creates confusion, the author states that since sub-section 7 is tackling a provision for ‘regular’ bail (sub-section 5), it cannot be permitted to engulf a provision dealing with ‘default’ bail (sub-section 2). This untangling becomes clearer when it is placed within the centre of existing limited jurisprudence on sub-section 7.

To begin with the juxtaposition, it is important to mention that the Karnataka High Court in Mohammed Shariff v. NIA rephrased this sub-section as “no bail shall be granted to any person” only in the context of sub-section 5 (para 32). Similarly, even when the Kerala High Court disallowed the bail pleas in Ly Nandana v. Union of India (para 34) and Ramesh v. NIA (para 8) within the bounds of sub-section 7, it was dealing solely with ‘regular’ bail. Although limited in occurrences, it is clear that the courts have been cognizant of the limits of sub-section 7 that do not extend beyond regular bail matters. Thus, the Gauhati High Court’s order was not reflective of an interpretational conflict, although it may seem otherwise. Nonetheless, despite this ‘final’ resolution based on these legal technicalities, one may still oppose the ‘compulsory’ release of a non-citizen, who may disappear into thin air. This is the concern that the author attempts to tackle in the following section.

The Interest of the State

This concern was presented before the Gauhati High Court (para 9) and is non-arguably a valid one, especially when it’s considering the state’s interests. It is a trite law, as per State of Rajasthan v. Balchand, that one of the reasons for denying bail to an accused is to secure their presence in the upcoming trial, and sub-section 7 is attempting to achieve the same purpose. Then, can one not argue that by applying the mischief rule, sub-section 2 can also be subsumed into the former sub-section, as doing otherwise will be sabotaging the purpose of the provision and the ‘bail or jail’ jurisprudence itself? Despite the plausibility and ostensible strength of the argument, it is bound to collide when facing human rights, especially the ones contained as ‘fundamental’ rights in the Constitution of India.

According to the right to “protection of life and personal liberty” enshrined in Article 21 of the Constitution, which was cited before the Gauhati High Court (para 7), a person’s liberty cannot be infringed “except according to procedure established by law”. Since the plain words of sub-section 7 do not provide such a procedure for ‘default’ bail cases, it is difficult to accept the aforementioned argument. Furthermore, this difficulty amplifies when one considers that the mischief rule is applicable when there is ambiguity, something missing in the instant case.  Even if one were to accept this argument by expanding the horizons of interpretation of statutes, Maneka Gandhi v. Union of India’s requirement of justness and fairness remains unfulfilled. To enunciate, the default bail was introduced into the criminal codes to prevent the state from turning into a machinery of subjugation and harassment, especially at the hands of lax investigating agencies. Hence, the default bail is a counteraction of individual rights in the criminal system already designed to protect the state’s interests.

Erosion of Rights

Despite being phrased in the language of ‘mandate’, the right to default bail has been constantly a subject of erosion. In the instant case, although the state was ‘legally’ allowed to imprison the accused for a maximum of ninety days, he was imprisoned for a period of two years. Thus, the petitioner’s “illegal custody” is ‘seven times’ his legal custody. This erosion was also witnessed in Sudha Bhardwaj v. NIA, where the accused, again charged under UAPA, was in prison for three years without a charge sheet. Moreover, this right has been further watered down by the per incuriam Pragnya Thakur v. State of Maharashtra, which has been accepted as a precedent in practice. This constant denial or dilution must be considered against the statute of “indefeasible” and “fundamental” right, provided by the Supreme Court in Sanjay Dutt v. State and Bikramjit Singh v. State of Punjab, respectively.

While the enforcement of this right via the writ mechanism remains untested (except Ritu Chhabaria v. Union of India), it has become clearer that this right has been defeated, generally at the hands of either procedure or interpretation of law. Unfortunately, this constant dilution remains unresolved by both the legislature and the judiciary. The present case, exhibiting judicial quietus and unaccountability, is another example of this problem. To elucidate, since the dilution is a result of (mis)interpretation of the statute, the omission of an explicit interpretation by the highest Court in the present case would unintentionally facilitate similar withholdings of this right to recur. Thus, as per the author’s opinion, the judiciary, in addition to providing the much-needed relief to the accused, should also attempt to plug all loopholes that find their way before it.

Conclusion

Upon noting all the observations made and jurisprudence quoted above, it can be concluded that sub-sections 2 and 7 of section 43D of UAPA do not conflict within both the human rights approach and the interpretation of statutes matrix. Thus, while there is an ‘almost’ prohibition on regular bail under sub-section 7, there is no restriction on the default bail framework envisaged under sub-section 2. Hence, the Supreme Court rightly released the accused in the instant case. However, the non-accountability of the judiciary or concerned actors of the state towards this “illegal custody” and the absence of explicit resolution of the ostensible conflict provide a fertile ground for further dilution of the right to default bail. Therefore, by ‘explicitly’ resolving the interpretational conflicts or mistakes, particularly observable in the high court’s or trial court’s judgments, the Supreme Court can plug the potential loopholes that can further dilute concrete rights like default bail.