What has the Supreme Court said about bail under the UAPA?

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OOn May 22, the Supreme Court granted six-month interim bail to two accused in the 2020 Delhi riots case – Abdul Khalid Saifi and Tasleem Ahmad. It also approached the larger Bench to question whether extended imprisonment and adjournment of trial can overcome the strict bail restrictions under anti-terrorism laws such as the Unlawful Activities (Prevention) Act 1967 (UAPA). This particular law authorizes the center to designate not only organizations but also individuals as “terrorists.”

What concerns did the Court express about the UAPA bail decision by the smaller Benches?

A three-judge bench in a 2021 judgment, Union of India v. KA Najeeb, laid down the principle that a case cannot be filed to wait indefinitely behind bars for the completion of the trial, however serious the offence.

On 18 May, a Bench of Justices BV Nagarathna and Ujjal Bhuyan in Syed Iftikhar Andrabi v National Investigation Agency expressed serious reservations about the smaller Benches “emptying” the principle laid down in Najeeb – that constitutional courts must step in and grant bail in UAPA cases where accused persons have spent years in pre-trial custody.

Justice Bhuyan, who authored the judgment, challenged the Supreme Court’s January 5, 2026 judgment (Gulfisha Fatima v. State, Government of NCT Delhi) which denied bail to former JNU student leader Umar Khalid and his co-accused Sharjeel Imam, who were charged under the UAPA in a “larger conspiracy” case in the Delhi riots. Granting bail to five other judges, the division bench of Aravind Kumar and NV Anjaria denied relief to two of them, prima facie finding that they were the “alleged masterminds”. Mr. Khalid has already spent more than five years in prison.

Justice Bhuyan’s remarks prompted the Delhi Police to raise objections with Justice Kumar, who authored the Gulfish Fatima judgment, during the bail hearings of Mr. Saifi and Mr. Ahmed.

Additional Solicitor General SV Raju argued that the Andrabi judgment clouded bail in UAPA cases. He rhetorically asked whether Ajmal Kasab – or Hafiz Saeed, if extradited from Pakistan – would also be eligible for bail just because they had spent five years in jail awaiting trial.

Justice Kumar referred the legal question to a larger bench, saying that the “perceived conflict” between the two coordinating chambers (of equal strength) of the court did not need a “serious reservation” but a “resolution”.

Why is bail so difficult under Section 43D(5) UAPA?

The section makes it more difficult to secure bail under the UAPA. The proviso to this mandates that an accused person will not be granted bail if the court found “reasonable grounds” to believe that the allegations were prima facie true on going through the case or charge sheet.

The Supreme Court’s 2019 judgment in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali saw a division bench headed by Justice AM Khanwilkar (now retired and currently serving as Lokpal chairman) hold that “complicated scrutiny” of evidence was not necessary for a court to establish prima facie guilt. The court only had to examine the “broad probabilities” to decide whether the allegations were true and deny bail.

Section 43D(5) turned bail case law on its head. The usual presumption of “bail not jail” has been reversed. While ordinary bail jurisprudence was based on the basic principle that a person is innocent until proven guilty, Section 43D(5) shifted the onus to the accused and presumes that a person is guilty until proven innocent.

How did the KA Najeeb judgment mitigate the bail?

The Najeeb verdict was the court’s response to the increasing use of Section 43D(5) as a weapon in the hands of the state. For jailed accused persons with limited financial and legal resources, disproving terrorism charges becomes an uphill battle, even as the prospect of a trial recedes as the years pass. It was in this context that the Najeeb judgment, authored by Justice Surya Kant (as he then was), clarified that constitutional courts could “dissolve” the rigor of Section 43D(5) and grant bail to a UAPA accused who had already spent “considerable time” in jail due to extensive delay in the trial.

The judgment in Najeeb cited precedents that constitutional courts cannot become mute spectators to the power of section 43D(5). They had to intervene to protect the fundamental right to life and personal liberty under Article 21 of the Constitution.

What did the Court clarify in the Andrabi verdict regarding § 43D(5) and Article 21?

In the Andrabi judgment, Justice Bhuyan said the court must not play ball on the Centre’s argument that the gravity of offenses under the UAPA outweighs the human right to bail. The judge pointed out that the conviction rate under the UAPA was only 2-6% nationwide.

Justices Nagarathna and Bhuyan observed that the trial cannot be penalized by denial of bail for failure of the state to hold the trial in time. If the alleged crime was serious, it was all the more necessary for the prosecution to finish the trial expeditiously. Bail cannot be refused merely on the ground that the charges were very serious.

The Andrabi judgment said the Supreme Court in Gulfisha Fatima had misread the Najeeb judgment when it said the three-judge Bench had created an automatic right to bail on the ground of delay. Justice Bhuyan clarified that the Najeeb judgment never supported the proposition that bail should be granted in any UAPA case of long-term imprisonment. Rather, the Najeeb judgment merely cautioned constitutional courts against treating the statutory embargo under section 43D(5) as the sole justification for continued detention, ignoring the broader constitutional principles of personal liberty and speedy trial. Held that section 43D(5) is subject to Article 21.

Has the Gulfish Fatima judgment deviated from the ‘binding precedent’ of the Najeeb judgment?

The May 22 order, which referred the issue of bail in UAPA to a larger bench, argued that the Andrabi judgment had misunderstood the reasoning behind the Gulfisha Fatima judgment. He said the judgment which denied bail to Mr Khalid and Mr Imam correctly applied the Najeeb principle. He said the Najeeb judgment appreciated the strict bail regime under Section 43D(5), recommending relaxation only in cases where the trial is unlikely to conclude within a reasonable time and the accused has already spent a long time behind bars.

The May 22 order sought to clarify that the Gulfisha Fatima judgment accepted the Najeeb judgment as a binding precedent. He recognized the centrality of Article 21 in the constitutional system and that pre-trial detention cannot be punitive in UAPA cases.

The order said Mr Khalid and Mr Imam were refused bail not because the Court found section 21 subordinate to section 43D(5), but based on an “accused-specific assessment” based on factors such as the evidence, their role in the alleged conspiracy and the need to protect the integrity of the trial.

Published – 24 May 2026 04:35 IST