The Supreme Court of India finds itself at the centre of a critical legal debate — can prolonged imprisonment and trial delays override the strict bail restrictions under anti-terror legislation like the Unlawful Activities (Prevention) Act, 1967 (UAPA)? A fresh conflict between two coordinate Benches has brought this question to a head.
The Trigger: Two Conflicting Rulings
The immediate flashpoint arose during the hearing of bail pleas filed by 2020 Delhi riots accused Abdul Khalid Saifi and Tasleem Ahmad, who had been denied bail by the Delhi High Court on September 2, 2025. The High Court had categorically held that delay in trial alone cannot be the basis for granting bail under UAPA.
However, just a day before the Supreme Court hearing, a Bench of Justices B.V. Nagarathna and Ujjal Bhuyan delivered a contrasting verdict — granting bail to Jammu & Kashmir resident Syed Iftikhar Andrabi in a narco-terror case and forcefully reaffirming:
"Bail is the rule and jail is the exception" — not merely a slogan, but a constitutional principle rooted in the fundamental rights to life, speedy trial, and freedom from arbitrary detention.
This Bench also voiced "serious reservations" about a January 5, 2026 verdict that had denied bail to JNU scholars Umar Khalid and Sharjeel Imam, particularly the unusual step of foreclosing their right to seek bail for an entire year.
The Core Legal Tension
At the heart of the dispute lies Section 43D(5) of the UAPA, which imposes a near-absolute bar on bail if the court, on a prima facie reading of the case diary, is satisfied that the accusations are true. The word used is "shall" — making it a mandatory presumption.
The Delhi Police, represented by Additional Solicitor General S.V. Raju, argued that this presumption displaces the ordinary presumption of innocence:
"When there is a presumption in law... and the word used is 'shall', then the presumption of innocence of the accused takes a backseat."
Against this stands the K.A. Najeeb (2021) precedent — a three-judge Bench ruling of the Supreme Court — which held that prolonged incarceration and inordinate trial delays can override even the Section 43D(5) bar. The May 18 Nagarathna Bench reaffirmed Najeeb; the January 5 Bench effectively sidelined it.
What Makes This Conflict Serious
- Both rulings are from coordinate (equal-strength) Benches — neither can overrule the other.
- The ASG himself admitted he had not read the May 18 judgment before arguing against it — highlighting the urgency and pace of these proceedings.
- The Delhi Police's allegation in the riots case is weighty: that the violence was orchestrated to engineer "regime change" and deliberately timed around then-US President Donald Trump's February 2020 India visit to embarrass India globally.
- Yet, the accused have been in custody for over six years — raising the very personal liberty concerns Najeeb was designed to address.
Why It Matters Beyond This Case
UAPA's bail restrictions are among the most stringent in Indian law. If the Najeeb principle is consistently applied, it creates a safety valve against indefinite detention without trial. If it is diluted or distinguished away, anti-terror law effectively becomes a tool for prolonged pre-trial imprisonment, regardless of whether a conviction ever follows.
Justice Bhuyan's concern that certain verdicts are "hollowing out" larger Bench rulings signals a systemic problem — where lower or co-equal courts creatively distinguish binding precedents rather than follow them.
Way Forward
The Supreme Court is now likely to refer this question to a larger Constitutional Bench to settle the conflict definitively. The key questions that Bench must answer:
- Does the K.A. Najeeb principle apply uniformly across all UAPA cases, or only in select circumstances?
- What is the threshold of "prolonged incarceration" that triggers the liberty override?
- Can a Bench foreclose the right to apply for bail — a remedy guaranteed by statute and Constitution alike?
Conclusion
The Delhi riots bail case has evolved into something far larger than the fate of two individuals. It is a stress test for India's constitutional commitment to personal liberty under the shadow of national security law. The Supreme Court must urgently resolve this contradiction — not merely to do justice in this case, but to prevent anti-terror statutes from becoming instruments of indefinite punishment without trial.
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GS3TerrorsimQuick Q&A
What is the significance of Section 43D(5) of the UAPA in the context of bail, and how does it affect the presumption of innocence?
The legal significance lies in the fact that it shifts the normal criminal law balance. Ordinarily, the presumption of innocence is a foundational principle of criminal jurisprudence. However, under Section 43D(5), the court’s assessment of the prosecution’s case at an early stage may reduce the practical benefit of this presumption. As argued by the Delhi Police before the Supreme Court, the statutory language uses the word ‘shall’, indicating a mandatory restriction, which may place individual liberty in conflict with legislative intent for national security.
From a constitutional perspective, this raises questions under Article 21, which guarantees personal liberty and speedy trial. The Supreme Court in K.A. Najeeb (2021) held that prolonged incarceration and delay in trial can override such restrictions, showing that constitutional rights can prevail over statutory limitations in exceptional circumstances.
Example: Similar issues have arisen in cases under special laws like PMLA and NSA, where the courts have repeatedly examined whether strict statutory barriers can completely override the right to liberty.
Why is the principle ‘bail is the rule and jail is the exception’ considered a constitutional doctrine even under anti-terror laws?
Justice Ujjal Bhuyan’s observation in the recent case reaffirmed that this principle is not merely rhetorical but a substantive constitutional safeguard. Even under anti-terror laws like UAPA, the judiciary must ensure that national security concerns do not completely eclipse fundamental rights. This is especially relevant where trials are delayed for years and undertrials remain incarcerated without conviction.
The importance lies in balancing state security and civil liberties. While anti-terror legislation is intended to prevent grave threats to sovereignty, prolonged detention without trial may amount to punishment without due process. Such detention undermines the essence of justice and creates the possibility of state excess.
Real-world relevance: The issue has become central in several high-profile cases involving activists, scholars, and political dissenters. The courts are increasingly required to assess whether the extraordinary powers granted to the state are proportionate and constitutionally justified.
Critically analyse the conflict between national security laws like UAPA and the fundamental right to personal liberty.
However, critics argue that such laws can be misused for prolonged detention without trial. When trials are delayed for years, denial of bail effectively becomes punishment before conviction. This undermines the presumption of innocence and may violate Article 21. The K.A. Najeeb judgment recognized that constitutional courts cannot ignore fundamental rights merely because Parliament imposed strict statutory restrictions.
Pros:
- Provides stronger legal tools against terrorism
- Enables preventive detention in sensitive cases
- Acts as deterrence against organized anti-state activities
- Potential misuse against dissenters
- Weakens procedural safeguards
- Long incarceration without conviction
The challenge is ensuring judicial oversight so that security concerns do not become a pretext for curtailing democratic freedoms.
How does the doctrine of precedent operate when coordinate Benches of the Supreme Court deliver conflicting judgments?
In the present case, the Delhi Police argued that the recent judgment granting bail under UAPA conflicts with the January 2026 ruling denying bail to Umar Khalid and Sharjeel Imam. Since both were delivered by coordinate benches, the issue may need to be placed before a larger bench to settle the legal interpretation.
This is important because consistency in law ensures predictability and fairness. Conflicting rulings can create confusion for lower courts, leading to inconsistent application of justice. A larger bench provides finality by resolving interpretational disputes.
Example: In constitutional matters such as privacy, reservations, and electoral reforms, conflicting judgments have often been referred to Constitution Benches to preserve coherence in jurisprudence.
Why can prolonged incarceration and delay in trial become grounds for bail even under special statutes like UAPA?
The Supreme Court in K.A. Najeeb clearly held that constitutional courts have the power to grant bail despite statutory restrictions when incarceration becomes excessive. This is because the constitutional guarantee of liberty has primacy over ordinary statutory limitations. Delay turns detention from preventive to punitive, which is inconsistent with criminal justice principles.
Case significance: In UAPA cases, trials often involve multiple accused, extensive evidence, and prolonged proceedings. This creates a practical risk of undertrials remaining in prison for years without conviction. The courts must therefore examine whether continued detention serves justice or violates rights.
Broader implication: This principle strengthens judicial review and ensures that the state cannot indirectly punish individuals merely through procedural delay.
As a civil servant, how would you balance national security concerns with civil liberties in implementing anti-terror laws?
The first approach would be ensuring procedural fairness. Investigations must be evidence-based, timely, and free from political influence. Arrests under UAPA should be made only after thorough scrutiny, and periodic review should be conducted to avoid unnecessary prolonged detention. Administrative efficiency in charge-sheet filing and trial support can reduce delays.
Practical steps:
- Strengthen coordination between police, prosecutors, and judiciary
- Ensure human rights training for investigating officers
- Establish review mechanisms for prolonged undertrial detention
Case relevance: In sensitive riot or terror cases, maintaining public confidence is crucial. Security measures must be robust, but they must also respect constitutional safeguards to avoid alienation and allegations of misuse.
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