Surendra Gadling, a lawyer and human rights defender, has been incarcerated since 2018 under India’s Unlawful Activities (Prevention) Act (“UAPA”). His detention forms part of the Bhima Koregaon prosecutions, where sixteen activists, lawyers, and academics have faced sweeping charges of conspiracy and incitement. The trials have advanced with striking slowness, leaving many in prolonged pre-trial custody. Gadling has continued to write from prison (see here, here and here), underscoring just how the passage of time in detention has itself become a constitutional question.
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For readers unfamiliar with the context, some background is in order. The UAPA is India’s principal anti-terror statute, known for its harsh bail restrictions, wide definitions and long pre-trial detentions. In the Bhima Koregaon case, the State has alleged a Maoist conspiracy behind violence at a 2018 commemorative gathering. Yet, much of the evidence has been challenged as unreliable or even fabricated. What is undeniable, however, is that most accused, including Gadling, have spent years in custody without trial.
In this essay, I advance a fairly simple claim. I suggest that time itself has become a constitutional axis in Indian criminal procedure today. For prolonged detention under statutes like the UAPA do not merely test traditional rights frameworks, but unsettle them completely. To take temporality seriously, then, is to recognise it as a constitutional harm in its own right.
Time as Substance
The Supreme Court has consistently held that delay in trial affects the enforceability of fundamental rights. In Hussainara Khatoon v. State of Bihar, the Court read the right to a speedy trial into Article 21, emphasising that liberty loses meaning when incarceration outlasts adjudication. This position, then, was reinforced in A.R. Antulay v. R.S. Nayak, where a Constitution Bench held that undue delay amounts to a violation of the right to life and personal liberty, warranting judicial intervention.
Yet, these precedents typically address delay in investigation or trial stages.
The Gadling case presents a subtler but perhaps an equally significant problem in the face of delay not in trial, but in the hearing of bail applications themselves. In K.A. Najeeb v. Union of India, the Court recognised that prolonged incarceration without trial requires constitutional correction through bail, even under stringent statutes like UAPA. But this principle presupposes timely judicial engagement. If the Court does not hear the matter, the constitutional safeguard remains toothless.
In this sense, judicial time is not a neutral background condition. It actively shapes the content of rights. A bail hearing scheduled but repeatedly deferred transforms Article 21 from a guarantee of liberty into a contingency of docket management. This becomes particularly true in cases under the UAPA, where statutory constraints on bail already tilt the balance heavily against the accused. Judicial delay, then, functions as an additional (though formally invisible) layer of restriction.
The constitutional concern, however, is not simply individual but systemic. In Supreme Court Legal Aid Committee v. Union of India, the Court ordered release of undertrial prisoners detained beyond half the maximum sentence prescribed, recognising that systemic delay cannot be borne entirely by individuals. Gadling’s case illustrates the need to extend this reasoning to bail hearings themselves. This being so, for if delay can constitutionalise early release in trial, it should equally trigger judicial scrutiny when adjournments in higher courts prolong incarceration.
To this end, I submit that time here acquires substantive force. For it determines whether a right is realised or deferred into irrelevance. The Gadling proceedings show just how liberty is not only curtailed by law, but also by judicial inaction over time.
Time as a Constitutional Metric
If time alters the substance of rights, then it must be treated as a constitutional metric, and not merely an administrative problem alone. Jurisprudence in India already gestures towards this direction. In Anil Rai v. State of Bihar, the Court acknowledged how delayed judgements compromise justice, and held that unexplained delay(s) in pronouncement can itself amount to a denial of justice. Similarly, in Vakil Prasad Singh v. State of Bihar, the Court quashed proceedings where prosecutorial delay undermined fairness.
The point is made even more clearly in Shaheen Welfare Association v. Union of India, where the Court dealing with a TADA case (an earlier anti-terror statute with similar bail restrictions) granted bail undertrials due to prolonged detention. The reasoning was explicitly temporal. The sheer passage of time, without progress, converted lawful custody into arbitrary detention. If seventeen adjournments over two years prevent a bail plea from being heard, the constitutional injury is not speculative, but measurable through time spent in custody. The absence of a hearing itself becomes a constitutional wrong. This would require reconceptualising Articles 21. The guarantee of personal liberty entails not only substantive protections but also temporal obligations on the judiciary.
To move towards such a jurisprudence, two shifts are necessary.
First, constitutional adjudication must treat time as a factor of equal weight to legality. Just as unlawful arrest or unlawful search vitiates state action, unreasonable judicial delay should vitiate continued detention. Second, remedies must be designed with time in view. Automatic presumptions of bail after defined periods of non-hearing, or constitutional damages for prolonged adjournments, could serve as structural correctives.
These suggestions, I submit, are not without precedent. In P. Ramachandra Rao v. State of Karnataka, while the Court declined to fix timelines for trials, it affirmed that delay can, in appropriate cases, justify termination of proceedings. Therefore, the principle that justice is inseparable from timeliness is (arguably) well established. The fundamental challenge that remains, hence, is to extend it beyond trials to appellate and bail proceedings.
Towards a Constitutional Grammar of Time
What Gadling’s case finally exposes is that Indian constitutionalism has yet to evolve a grammar for the lived temporality of liberty. Our doctrine tends to conceptualise rights in binary terms. Either granted or withdrawn / available or denied. Whereas in practice, liberty is often eroded not by sudden extinguishment but by slow attrition. Time dissolves liberty day by day, until the original guarantee of rights becomes almost unrecognisable. Yet our jurisprudence persists in treating delay as a matter of administration. As if the passage of months or years were external to the constitutional promise.
This, then, is the point of departure. Indian constitutionalism must move from permissions to obligations, requiring the State to justify not only why liberty is curtailed but also for how long, and under what schedule of adjudication. If courts continue to treat time as external to constitutional reasoning, liberty will remain vulnerable to erosion through delay. To recognise rights as temporal goods is to accept that their worth lies in their ability to check power in the present, and not in some indeterminate future when a trial is concluded or a bail hearing is eventually scheduled.
Gadling’s case, in this light, is more than a personal tragedy. It is a structural parable, reminding us that justice is inseparable from time, and that a constitutional order blind to this fact risks making liberty itself a perishable illusion.
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