Four-and-a-half years after his arrest in a terror-conspiracy case investigated by the National Investigation Agency (NIA), Kashmiri human rights activist Khurram Parvez was granted bail by the Delhi High Court on Wednesday (June 10).

The Division Bench comprising Justices Navin Chawla and Ravinder Dudeja held that the prolonged period that Parvez spent in custody, along with the slow progress of the trial and his disability, had justified his release despite the stringent bail restrictions under the Unlawful Activities (Prevention) Act (UAPA).

“The appellant’s right under Article 21 of the Constitution of India need to be balanced and may even trump the restriction imposed under Section 43D(5) of the UAPA,” the court said. The bail order pertains to the case in which Parvez was arrested in November 2021. 

Parvez, however, will continue to remain in jail on account of another NIA case of 2020, in which he was formally arrested in 2023 while already in custody. The bail application in that case remains pending before the trial court.

The NIA case originated from an FIR registered in November 2021, alleging that the banned terror outfit Lashkar-e-Taiba (LeT) had established a network of operatives and over-ground workers across India through a handler. While Parvez was not named in the FIR, he was arrested during the investigation.

Parvez was the programme coordinator of the Jammu Kashmir Coalition of Civil Society (JKCCS), a union of civil society organisations in Jammu and Kashmir (J&K) involved in investigating human rights violations in J&K and advocating for the rights of victims of enforced disappearances, illegal detentions, torture, and extrajudicial executions.

According to the NIA, Parvez was a part of a larger conspiracy involving LeT operatives and supporters. He was alleged to have collected information related to army movements near the Line of Control, which Parvez disputed, stating that the information “primarily revolves around fact-finding, research, and documentation of atrocities faced by civilians due to state excess and/or militancy.”

Allegations were levelled at his meeting with the Hizbul Mujahideen chief, Syed Salahuddin, in 2007 and 2015, arguing that these were visits that demonstrated links with the organisation. These meetings, Parvez argued, were undertaken with valid visas related to humanitarian and advocacy work to convince organisations to abide by the Geneva Convention, which had long been “a matter of the public record”.

What the High Court held

The court held that the period of imprisonment without progress in trial had to be taken into consideration. Parvez had spent almost four and a half years in custody, and the proceedings were still at the stage of arguments.

The court observed that “the long period of incarceration of the appellant and the fact that there is no likelihood of the trial ending soon as also against the yardstick of bail being the rule, while denial thereof being an exception. The appellant’s rights under Article 21 of the Constitution of India need to be balanced and may even trump the restriction imposed under Section 43D(5) of the UAPA.”

On the nature of the evidence, the court noted that the prosecution case against Parvez rested substantially on the statement of the co-accused Muneer Ahmad Kataria, who had turned approver in 2019 and whose evidence remained to be tested during trial.

Arguing that the facilities in the prison are “inadequate” or that “assistance and infrastructure are not suited to disabled persons”, the court gave weight to Parvez’s disability as he had lost a leg in a landmine blast and was entitled to special consideration on that account.

Legal framework

The case turns on Section 43D(5) of the UAPA, which states that courts should not grant bail if, upon examining the case diary or chargesheet, they find reasonable grounds to believe that the “accusations against such person is prima facie true”.

In practice, this creates a significantly higher threshold for bail than in ordinary criminal cases. Over the last few years, however, courts have increasingly been confronted with whether an accused should be kept in prison indefinitely while waiting for trial.

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In Union of India v. K.A. Najeeb, the Supreme Court held that constitutional courts retain the power to grant bail where prolonged incarceration and delay in trial threaten fundamental rights under Article 21. It noted that “at the commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail, however, these restrictions will melt down where there is no likelihood of the trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.” 

At the same time, recent Supreme Court decisions in the cases of Gulfisha Fatima and Syed Iftikhar Andrabi, along with a recent reference to a larger bench of the top court, show that the law remains in flux.