The Supreme Court referred the UAPA’s bail curbs to a larger court for an “authoritative” decision

The Supreme Court on Friday (May 22, 2026) granted six-month interim bail to two accused in the 2020 Delhi riots case, referring to a larger Bench whether prolonged imprisonment and adjournment of trial can overcome strict bail restrictions under anti-terrorism laws such as the Unlawful Activities (Prevention) Act, UAP1967 (UAP1967). The court said the reference was necessary to ensure “parity, consistency and institutional fidelity” in the application of binding precedents by the coordination benches.

The reference was made by Justices Aravind Kumar and PB Varale during the hearing of bail pleas filed by 2020 Delhi riots accused Abdul Khalid Saif and Taslee Ahmad challenging the Delhi High Court’s September 2, 2025 order denying them bail.

“Where a co-ordination bench has reservations about the reasoning of an earlier co-ordination bench, particularly with regard to the application of a binding decision of a three-judge bench, the proper procedure is well settled. The matter must ordinarily be referred to the Chief Justice of India (CJI) to constitute an appropriate bench. A co-ordination bench cannot, even if it continues strong observations in the same force, effectively upset the ratio to be earlier co-ordinate Bench observed.

The reference came in response to Delhi Police’s claim that the May 18 judgment of the coordination bench – which expressed “serious reservations” over the January decision of a bench headed by Justice Kumar to deny bail to activists Umar Khalid and Sharjeel Imam in the Delhi riots “larger conspiracy” case – predated the Supreme Court’s “hollow generalization” case.

“The Facts of Each Case”

During the proceedings, Additional Solicitor General SV Raju, who appeared for the Delhi Police, said the Bench said the question of bail has to turn to the facts and circumstances of each case.

“The last judgment (on May 18) says you don’t have to see the role, you don’t have to see the nature of the crime. So there is no categorization…It can’t be done. It can’t be applied like that. It has to be applied to the facts of each case. That’s exactly what your Lordships have done,” Mr. Raju said.

He argued that courts must strike a balance between the “interests of society and victims” and the “rights of the accused” when considering bail under terror laws.

The Bail Rule: On Freedom and Government Andrabi

“If you take the case of Ajmal Kasab, there are a large number of witnesses. Will you give him bail, considering that he is in jail for 7 or 8 years? It is not possible… Suppose if Hafiz Sayeed is brought from Pakistan and he is tried and he will be in jail for 5 years, because there are a large number of witnesses (because no evidence from abroad), you will not have to collect any evidence, you will not have to collect evidence for 5 years (passed)?” asked Mr. Raju.

‘counter-observations’

The May 18 judgment, delivered by Justices BV Nagarathna and Ujjal Bhuyan, emphasized that the January 5 verdict did not correctly apply the binding principles laid down by a larger three-judge bench in Union of India v KA Najeeb (2021), which held that prolonged imprisonment and adjournment of the trial could “melt down” the strict Section 3DAPA. The provision prevents courts from extending bail if there are reasonable grounds to believe that the allegations against the accused are “prima facie true”.

A Bench headed by Justice Kumar on Friday (May 22, 2026) said it did not wish to examine the “correctness of observations” made by the Coordinator Bench as “counter-observations” would be unnecessary judicial discipline. However, he emphasized that the “discipline of precedent” does not allow the coordination committee to express “reservations of a fundamental nature” to the alleged misuse of the larger committee’s decision without first bringing the matter before a committee with the appropriate power to resolve the “perceived conflict”.

The court further noted that the accused’s reliance on its January decision to grant conditional bail to student activist Gulfisha Fatima and four other co-accused while denying relief to Mr Khalid and Mr Imam after distinguishing their alleged roles was “not without significance”.

“If it (judgment) were based on the premise that s. 43D(5) overshadows s. 21, or that extended imprisonment has no constitutional effect on UAPA prosecutions, it could hardly be invoked by accused persons seeking an extension of bail. Reliance on it alone shows that the said decision cannot be placed in a fixed or unilateral framework.”

The bench warned that an “unqualified reading” of the proposition that mere lapse of time can compel bail in any UAPA case could have “serious consequences”. Such an approach, she said, would leave little room for courts to examine factors such as the nature of the allegations, the centrality of the accused, the protection of witnesses, the risk of intimidation, the possible reactivation of networks, whether the delay can be attributed to the accused, and wider public order and national security concerns.

At the same time, the Bench recognized that an “equally unqualified stay” on Section 43D(5), notwithstanding the extended imprisonment, would jeopardize the guarantee of personal liberty under Article 21 of the Constitution. This “perceived conflict,” it said, merited consideration by a larger committee.

However, the court clarified that none of its comments were intended to “fragile, dilute, narrowly read, or diminish the authority” of the Najeeb precedent. “On the contrary, this mention is necessary because Najeeb deserves to be applied with the parity, consistency and institutional fidelity mandated by a binding three-judge bench,” he noted.

Accordingly, the Bench directed the registry to submit the documents to Chief Justice Surya Kant to constitute an appropriate committee for an “authoritative decision”.

Provisional bail

However, the court recognized that the accused “may not be made to suffer” merely because an important legal question has arisen for authoritative resolution. Taking note of the fact that the accused had undergone “substantial confinement” and that the trial was “unlikely to end immediately”, the bench proceeded to grant anticipatory bail.

“Without expressing any view on the merits and subject to strict safeguards, we are inclined to grant interim bail to the appellants pending further orders,” the Bench said.

The bench directed the accused to furnish personal bonds of ₹2,000 each along with two local sureties to the satisfaction of the trial court and directed them to surrender their passports to the trial court. They were also instructed not to leave the national capital without prior permission of the trial court or change their residence without informing the investigating officer.

“The appellants shall not make any public statement, including in print, electronic or social media, affecting the merits of the case, evidence, witnesses or the pending trial,” the Bench said, adding that any breach of the conditions would expose them to the risk of cancellation of bail.

Published – 22 May 2026 21:11 IST