Bail, freedom and differences in Supreme Court in reading UAPA

Reference Justice B.V. Nagarathna and Justice Ujjal Bhuyan’s May 18 judgment, in which Jammu and Kashmir resident Syed Iftikhar Andrabi was granted bail in a narco-terrorism case. National Investigation Agency. In a strongly worded judgment, the bench said constitutional courts cannot allow Section 43D(5) of the UAPA – a provision imposing stringent conditions for bail – to erode the liberty and speedy trial guaranteed under Article 21 of the Constitution.

Also read:Clear position on the right to bail. ht editorial

The judgment openly questioned the logic adopted by a two-judge bench headed by Justice Arvind Kumar while denying bail to the former Jawaharlal Nehru University student in January this year. Omar Khalid and activist Sharjeel Imam in an alleged larger conspiracy case related to the 2020 Northeast Delhi riots.

Additional Solicitor General SV Raju appears before Justice Kumar-led bench in bail proceedings related to Delhi riots Argued that judicial views on bail under UAPA differ An official solution is needed by a larger bench.

The unfolding judicial disagreement has revived a fundamental constitutional question: do statutory restrictions under anti-terrorism laws override the constitutional commitment to liberty and speedy trial?

Constitutional courts versus statutory restrictions

The crux of the controversy relates to Section 43D(5) of the UAPA, which severely restricts the granting of bail if the charges against an accused are found “prima facie true” by the court.

investigative agencies over the years Heavily relied upon the Supreme Court’s 2019 decision In the case National Investigation Agency vs. Zahoor Ahmed Shah Watali, it was held that courts should not conduct detailed examination of evidence while considering bail under UAPA. This decision significantly tightened bail limits and has been invoked repeatedly to oppose the release of individuals accused in terrorism-related trials.

However, the legal landscape changed significantly with the 2021 judgment delivered by a three-judge bench of the Supreme Court in the Union of India vs KA Najeeb case.

In that case, the court dealt with an accused who had spent more than five years in custody, with the trial showing no signs of ending any time soon. The bench held that constitutional courts retain the power to grant bail despite statutory restrictions where prolonged imprisonment violates Article 21.

The latest judgment by Justices Nagarathna and Bhuiyan strongly reiterates that principle and makes clear that the Najib judgment should never be treated as a narrow exception applicable in exceptional facts.

The court said: “Section 43-D(5) remains at all times subject to Article 21 and a constitutional court need not withhold bail to the accused under the garb of Section 43-D(5).”

The judgment of 18 May repeatedly stressed that constitutional guarantees cannot be subjected to statutory restrictions. According to the bench, the “rigors” of Section 43D(5) “cease” once the imprisonment becomes excessive and the delay in trial becomes unreasonable.

Importantly, the Court declared that the well-known principle that “bail is the rule and jail is the exception” is not merely a procedural concept arising from criminal law statute, but a constitutional principle rooted in Articles 21 and 22 and the presumption of innocence.

How the Court narrowed down Watali and criticized subsequent decisions

A large portion of the latest decision is devoted to clarifying what the court describes as a serious misunderstanding of the Watali precedent.

According to the bench, Watali arose in a very specific factual context, where the High Court had conducted a “mini-trial” at the bail stage by evaluating the admissibility and credibility of the evidence. The Supreme Court intervened in that case because the High Court had exceeded the limited inquiry allowed at the bail stage.

The latest judgment said Watali never intended to impose an almost complete ban on bail under the UAPA.

The judgment therefore criticized the interpretation adopted in later judgments such as the January 2026 Delhi riots judgment in Gurvinder Singh v. State of Punjab and the Gulfisha Fatima case.

In Gurvinder Singh’s case, a two-judge bench developed This is called a “two-dimensional test”.Holding that courts must first determine whether the allegations are prima facie true before considering the usual bail factors such as possibility of absconding or witness tampering.

Justice Bhuyan, writing the judgment for the bench, rejected this view outright. The court said, “With respect, this test is neither affected by the text of section 43-D(5) nor by Najib.”

The bench warned that if such a formulation is accepted, the State would only have to cross the prima facie low threshold to keep an accused in captivity for years, effectively converting pre-trial detention into punishment.

The judgment said Najib had indeed intended to prevent such an outcome.

In one of the strongest passages of the judgment, the court said that subsequent rulings made it appear that a proposal had been “invented and then destroyed” that Najib himself had never put forward.

It said, “Najib was not warning courts against considering imprisonment as the sole factor in favor of bail. Instead, he was warning against treating statutory restrictions as the sole factor to justify continued detention by ignoring constitutional principles.”

Importance of judicial discipline and bench strength

Beyond bail jurisprudence, this decision also becomes an important lesson on judicial discipline and precedent within the Supreme Court.

The bench repeatedly stressed that since the decision on Najeeb was by a three-judge bench, it was binding on all smaller benches. “A smaller back cannot diminish, sidestep or ignore the proportions of a larger back,” she said.

This aspect became particularly important as the bench directly questioned the veracity of Khalid and Imam were denied bail in the January 5 decision – A rare occurrence in Supreme Court jurisprudence where a coordinate bench rarely dissents from a recent judgment.

The court clarified that if smaller benches disagree with the decision of a larger bench, it would be appropriate to refer the matter to the Chief Justice of India for constituting a larger bench rather than developing separate interpretations.

This is exactly the beginning that Delhi Police is now trying to exploit.

During the hearing of the bail plea of ​​Delhi riots accused Tasleem Ahmed and Abdul Khalid Saifi, ASG Raju on Tuesday argued that the May 18 judgment and earlier judgments reflect conflicting approaches to UAPA bail and hence an official determination by a larger bench is required.

The submissions are significant because the January 5 judgment, now criticized by the latter bench, was given by Justice Kumar himself, who continues to hear cases related to the Delhi riots. The bench has currently given Delhi Police time to study the May 18 judgment before proceeding further.

big constitutional fight

The constitutional tension that emerges from these decisions is the balance between national security and individual liberty. The state’s consistent argument has been that anti-terrorism laws operate differently from ordinary criminal law because the presumption of innocence should give rise to national security concerns at the bail stage. ASG Raju reiterated this position before the court, arguing that section 43D(5) represents a conscious legislative departure from normal criminal jurisprudence.

However, the latest decision strongly refutes any suggestion that anti-terrorism laws might completely displace constitutional guarantees.

The Court explicitly held that Article 21 applies “regardless of the nature of the offence”, and that constitutional courts have the ultimate responsibility for ensuring that statutory sanctions do not become a means of indefinite imprisonment.

The judgment also highlighted the shocking statistics of convictions under UAPA. Citing National Crime Records Bureau data, the bench said the conviction rate in UAPA cases is extremely low, especially in Jammu and Kashmir where the annual conviction rate was reported to be less than 1%.

“With this kind of data coming before us, the question is whether we should continue the custody of the appellant or defer the consideration to a later stage, just because the allegations are serious?” the May 18 decision asked.

This argument reflects growing judicial concern that prolonged pre-trial detention under special statutes may itself be punitive, particularly where trials move slowly, and conviction rates remain minimal.

The present dispute is thus one of the most consequential judicial debates on liberty and anti-terrorism laws in recent years.

The May 18 decision is more than granting bail to an accused. It seeks to reclaim the constitutional basis which the Court believes has gradually been narrowed through subsequent interpretations of Section 43D(5) of the UAPA.

Reaffirming that “bail is the rule and jail is the exception” even in UAPA trials, the bench sought to restore the primacy of Article 21 over statutory restrictions. Equally importantly, it has reminded lower benches and courts that constitutional guarantees cannot be indirectly weakened through a narrow reading of binding precedent.

Also, Delhi Police’s insistence on a larger bench indicates that the legal battle is not over yet. The Supreme Court will now have to decisively decide whether prolonged imprisonment and delayed trials should overcome the stringent statutory hurdles for bail under anti-terrorism laws.