On June 10, 2026, the Delhi High Court granted bail to Khurram Parvez. The trial court had refused it. After four and a half years of pre-trial custody, the High Court concluded that the constitutional guarantee of personal liberty under Article 21 outweighed the statutory restriction on bail contained in the Unlawful Activities (Prevention) Act, 1967 (UAPA).Khurram Parvez did not leave prison.He continues to be in prison in connection with another case where his bail application has remained pending for more than a year. The arguments for bail have concluded, but an order has not been passed yet. Alongside him is Irfan Mehraj, a journalist and researcher arrested in the same case in March 2023. He, too, remains in custody. The trial in this second case has also not begun yet.At first sight, this appears to be the ordinary consequence of facing two criminal cases. However, it is something more unsettling than that. It raises a constitutional question that reaches beyond the circumstances of these two men. If a constitutional court has already concluded that prolonged incarceration can no longer be reconciled with Article 21, under what circumstances may another court continue to keep the same person in prison?The answer depends on two questions. The first is whether the second prosecution is meaningfully different from the first. The second is what, exactly, the high court decided when it granted bail.On paper, the two prosecutions are distinct. The first – the National Investigation Agency’s Regular Case (NIA’s RC-30/2021) alleged that Parvez supported Lashkar-e-Taiba by recruiting an associate, introducing him to a Pakistan-based handler, and arranging the recovery of electronic devices seized by the police. It is in this case that the Delhi high court has granted bail.Also read: Jailed for Over Four Years, Kashmir Activist Khurram Parvez Gets Bail in NIA CaseThe second (RC-37/2020) prosecution, described by the NIA as an “NGO Terror Funding Case”, names Parvez as the first accused, Mehraj as the second, and Ghulam Hassan Bana, now absconding in Pakistan, as the third. Its case is that the Jammu and Kashmir Coalition of Civil Society (JKCCS), where Parvez served as Program Coordinator and Mehraj worked as a researcher, received foreign funds to ultimately benefit Hizbul Mujahideen under the cover of human rights work.Irfan MehrajThe differences are obvious enough. The two cases have different FIR numbers, the organisations accused are different too, and so are the allegations. One chargesheet speaks the language of ‘recruitment’; the other of ‘funding’. A closer look, however, shows these two prosecutions resemble one another.Both are built around the same organisation, both rely on material recovered during searches of the same offices – on the work of JKCCS and its documentation of human rights abuses in Kashmir. Above all, both ask the court to accept the same underlying proposition: that human rights research and documentation activities were, in reality, a cover for terrorist activity.That overlap matters because the high court’s judgement was never simply about one set of allegations. To understand why it matters in the second prosecution, it is first necessary to understand what the court actually decided and did not decide.What the high court actually heldA bail hearing under Section 43D(5) of the UAPA is not a trial. The court is not asked to determine guilt. It asks only whether continued detention remains justified. That distinction shaped the judgement from beginning to end.The court performed a structured inquiry under Section 43D(5) as required by the Supreme Court. It asked whether the role attributed to the accused reflects a “real and meaningful nexus” to a proscribed activity, “as distinguished from mere association or peripheral presence,” assessed individually and without conducting a mini-trial. The judgement has been careful in stating that it has conducted a ‘surface evaluation of the case alleged by the prosecution’. While the court notes that the allegations are serious, it holds that, without testing at trial, the case does not justify indefinite detention.The prosecution’s case rested substantially on the statement of a co-accused who had become an ‘approver’ – a person charged in the same case who is offered a pardon in exchange for testifying against the others. The court did not reject his account, nor did it accept it. Instead, it recognised something more elementary: his testimony, potentially provided as a bargain for his freedom, had not yet been tested through cross-examination in a trial.Also read: Delhi Riots: Amid Divergent Views on Bail in UAPA Cases, SC to Refer Matter to Larger BenchLikewise, it noted that many of the documents, i.e. the published human rights reports, relied upon by the prosecution were already in the public domain. This is not disputed by the state. Consequently, the court did not treat them as sufficient, at the bail stage, to outweigh the constitutional claim to liberty.The court’s restraint is significant because it explains from where the judgement derives its force. Bail was not granted because the court had concluded that the prosecution’s evidence had collapsed. It was granted because, even without deciding whether the allegations were true, there came a point at which continued incarceration ceased to be constitutionally justified.After setting out both the prosecution’s allegations and the defence’s response, the court observed that it had referred to them only because they had to be assessed against two constitutional facts: the extraordinary length of Parvez’s incarceration and the absence of any realistic prospect that the trial would conclude soon. It was in that context that the court made its central observation that the accused’s rights under Article 21 “need to be balanced and may even trump the restriction imposed under Section 43D(5) of the UAPA.”The court was no longer asking whether the prosecution had made out a prima facie case. It assumed, for the purposes of bail, that the allegations would eventually be tested at trial. The constitutional question lay elsewhere: whether a person could continue to be imprisoned for years before that trial had even begun.The answer drew on a principle the Supreme Court had already recognised in Union of India v. K.A. Najeeb. There, a three-judge Bench held that the statutory restrictions on bail under the UAPA cannot override Article 21 where an accused has already undergone prolonged incarceration and there is no realistic prospect of the trial concluding within a reasonable time. At that point, the court held, the rigour of Section 43D(5) must yield to the Constitution’s guarantee of personal liberty. The Delhi high court did not create a new doctrine but applied the existing one.That is the question the second prosecution must answer as well. It cannot do so merely by pointing to a different charge-sheet or a different statutory allegation. It must show why the constitutional balance struck by the high court no longer applies. Whether it succeeds depends on whether the second case raises considerations that are constitutionally different, rather than merely factually different. That is where the prosecution’s case becomes considerably more difficult.The principal distinction in the second case is its financial allegations. Unlike the first case, the charge-sheet alleges that foreign contributions received by JKCCS were ultimately used to support Hizbul Mujahideen. The allegation gives the second prosecution an appearance of greater gravity. Financial records, overseas organisations and the language of terror financing occupy a prominent place in the charge-sheet. The state is therefore likely to argue that the constitutional balance struck in the first case cannot simply be repeated in the second. That argument deserves careful attention.Also read: Pause the Celebration: Bail Under UAPA Is Still Not a RightReceiving foreign contributions without the permissions required by law may amount to a regulatory violation under the Foreign Contribution (Regulation) Act. It does not, by itself, establish the financing of terrorism. To bridge that gap, the prosecution must demonstrate that the funds were intended for, or reached, the activities of a proscribed organisation.The financial records themselves do not establish that proposition. They are more likely to support the account that the money funded an organisation engaged in documenting torture, enforced disappearances, and other human rights violations. The allegation that the funds ultimately supported terrorism rests elsewhere: on the statements of protected witnesses whose identities remain concealed, and on the account attributed to Ghulam Hassan Bana, who remains absconding in Pakistan and is unlikely ever to enter a witness box.A chargesheet is merely the opinion of the investigating officerThe second prosecution differs in its allegations more than in the constitutional problem it presents. Step back from the language of the charge sheet for a moment. What does it actually describe?It describes researchers documenting troop deployments, collecting testimonies, writing reports on torture and enforced disappearances, corresponding with international human rights bodies, and raising funds for victims of violence.The NIA does not deny that these things happened. It argues that they served a different purpose. Activities presented by JKCCS as documenting human rights violations are said instead to have furthered the objectives of a terrorist organisation.Whether that interpretation is ultimately correct is a matter for trial. The point, for present purposes, is different. The constitutional question is whether that disputed interpretation can justify years of imprisonment before it has ever been tested in court.Also read: The Work of Irfan Mehraj, a Fearless Journalist Who Offered Fresh Perspectives on KashmirThe same question now arises in the second prosecution.It arises with particular force in the case of Irfan Mehraj. The charge-sheet principally attributes to him research and editorial work, and not how JKCCS maintained its finances. His alleged connection to terrorist activity depends upon precisely the evidentiary framework that remains untested: protected witnesses whose identities cannot be disclosed and the account of an absconding co-accused who will never be cross-examined.If Article 21 required the release of the alleged principal accused after four and a half years of incarceration, why does the continued detention of a human rights defender and a researcher in the companion case remain constitutionally necessary?None of these questions would arise with the same urgency if the trial were close to conclusion. The trial has hardly begun.More than three years after the arrest of Mehraj in the second case (Parvez was already in prison in relation to the matter in which the high court has granted bail), not one of the prosecution’s 177 witnesses has been examined. One accused remains beyond the court’s jurisdiction. Bail arguments, after multiple adjournments and change of judges, have concluded, but the order remains pending. The proceedings continue to move from one adjournment to the next while custody remains uninterrupted.Delay as punishment under UAPAThis is the situation that concerned the Supreme Court in K.A. Najeeb. Constitutional liberty cannot depend indefinitely upon the pace at which the State is able to bring an accused to trial. Where incarceration becomes prolonged, and the conclusion of proceedings remains uncertain, the statutory restriction on bail ceases to provide a complete answer.The experience of UAPA prosecutions suggests that this concern is no longer exceptional. Bail, where it is granted, frequently comes only after years of imprisonment. Conviction rates under the statute remain strikingly low. In Jammu and Kashmir, they have been lower still for several years. None of this determines whether an individual accused is guilty. It does, however, highlight the constitutional significance of prolonged pre-trial detention. If trials routinely outlast the period for which many offences carry punishment, detention begins to assume a character the Constitution does not contemplate.The question the cases of Khurram Parvez and Irfan Mehraj present, therefore, is larger than either prosecution. It is whether a constitutional right to liberty has any practical meaning if it can be recognised in one courtroom, after over four years, and yet indefinitely deferred in another.The UAPA is designed to deny liberty by postponing it. And as the postponement lengthens, from months into years, the distinction between detention awaiting trial and punishment before conviction becomes increasingly difficult to sustain.Saranga Ugalmugle is a lawyer and a legal researcher.