Citing an earlier judgment that the stringent bail provisions under the Unlawful Activities (Prevention) Act (UAPA) would “melt down” in cases where prolonged incarceration and delayed trial “produce violation of Article 21”, a two-judge bench of the Supreme Court on Monday expressed “serious reservations” about the decision of another two-judge bench to deny bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case.
The bench of Justices B V Nagarathna and Ujjal Bhuyan made these observations while granting bail to a resident of Jammu and Kashmir, Syed Ifthikar Andrabi, in custody since 2020. Andrabi faces charges under the UAPA in a narco-terror case investigated by the National Investigation Agency (NIA).
Saying that bail is the rule and jail an exception even in UAPA cases, the bench said it is a constitutional principle flowing from Articles 21 and 22, and the presumption of innocence is the cornerstone of any civilised society governed by the rule of law.
The bench pointed out that in the Union of India vs K A Najeeb case in 2021, a three-judge bench of the court had held that violation of a fundamental right like right to speedy trial can be a ground for grant of bail even under a stringent law like the UAPA. The bench had then upheld the bail granted to an accused jailed since April 2015 for alleged involvement in chopping the hand of a Kerala professor in 2010.
“Therefore, the caution of Najeeb (case) is that continued incarceration cannot go unabated by a mere discharge by the State of the prima facie standard under Section 43-D(5) (which lays down stringent conditions for grant of bail under UAPA). The judgment explicitly held that Section 43-D(5) will ‘melt down’ where prolonged incarceration and delayed trial produce a violation of Article 21. The constitutional inquiry in Najeeb therefore operated independent of, and notwithstanding, the statutory embargo of Section 43-D(5) in the realm of constitutional principles,” the bench said.
However, in two subsequent judgments by separate two-judge benches — Gurwinder Singh vs State of Punjab (February 2024) and Gulfisha Fatima vs State (NCT of Delhi) (January 5, 2026) — the court took a somewhat divergent view “from the clear, distinctive trajectory it had earlier followed,” the bench said.
In the Gulfisha Fatima vs State case, an SC bench of Justices Aravind Kumar and N V Anjaria had granted bail to five other accused in the Delhi riots conspiracy case, but denied relief to Khalid and Imam, saying they stood on a “higher footing in the hierarchy of participation”. The court had observed that prolonged incarceration cannot be an “absolute entitlement” to seek bail in terror cases.
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“This court is satisfied that the prosecution material taken on face value as required at this stage discloses a prima facie attribution of a central and formative role by appellants… Umar Khalid and Sharjeel Imam are in the alleged conspiracy. The material suggests involvement at the level of planning, mobilisation, and strategic direction extending beyond episodic or localised acts. The statutory threshold under Section 43(d)(5) of the UAPA, therefore, stands attracted qua these appellants,” the bench had said.
On April 16 this year, the SC had dismissed review petitions against this decision.
“We have serious reservations on various aspects of the judgment in the Gulfisha Fatima case, including foreclosing the right of the two appellants to seek bail for a period of one year… The judgment in the Gulfisha Fatima case would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5) justified in extreme factual situations. It is this hollowing out of the import of the observations in the Najeeb case that we are concerned with,” the bench said on Monday.
In the case of Gurwinder Singh, accused in a UAPA case of Sikh separatism, the SC, while rejecting the bail plea, had said that relief could be denied if accusations appear to be prima facie true and in such situations, bail would be an exception and jail the norm.
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On Monday, Justice Bhuyan, writing for the bench, said: “We make it clear that K A Najeeb is the binding law and entitled to the protection of stare decisis. It cannot be diluted, circumvented, or disregarded by the trial court, the High Court, or even by benches of lower strength of this court.”
The doctrine of stare decisis requires courts to follow established legal precedents so as to ensure consistency, fairness and predictability.
“A judgment rendered by a bench of lesser strength is bound by the law declared by the bench of greater strength. Judicial discipline mandates that such a binding precedent must either be followed or, in case of doubt, be referred to a larger bench. A smaller bench cannot dilute, circumvent or disregard the ratio of a larger bench,” the court said.
“Judicial discipline and certainty demands that benches of smaller strength are mindful of the decisions rendered by larger benches and are bound to follow the same. If the smaller benches are unable to agree with the ratio laid down by the larger bench, then the proper and the only course of action open is to make a reference to the Hon’ble Chief Justice of India for placing the matter for consideration by a still larger bench. Being in a combination of two Judges, we are bound by the ratio laid down by the three-Judge Bench in K A Najeeb. We say this and no more,” it said.
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The court said the judgment in the Gurwinder Singh case relied on another decision (NIA vs Zahoor Ahmad Shah Watali), but the latter was also by a two-judge bench.
It said that if the test laid down in that case — that bail will be considered only if the accused satisfies that there was no prima facie merit in the case — “is accepted, the State needs only to satisfy a low prima facie threshold while the trial may continue for years, with the result that pre-trial incarceration begins to acquire a post-trial punitive character and even then, no court could ever grant bail no matter the length of period of such incarceration because the case stood prima facie made out against the accused.”
“A plain reading of Najeeb (case) will show that it was trying to prevent precisely this possibility from arising when it cautioned that Section 43-D(5) must not become the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial,” it said.
The bench said that while “statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAPA is meant, but those cannot altogether invert the constitutional relationship between liberty and detention. The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception; of course, in an appropriate case, bail can be denied, having regard to the facts of that particular case.”
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In the current case, the bench directed that Andrabi be released on bail, subject to conditions as the NIA court may deem fit. He had earlier been denied bail by the NIA court and the Jammu and Kashmir High Court.
Andrabi was accused of having links with Pakistan-based handlers of the Lashkar-e-Toiba and Hizbul Mujahideen, and involvement in a cross-border narcotics smuggling racket to fund terrorist activities in India. Andrabi’s counsel had contended that though the chargesheet was filed on December 5, 2020, the trial was moving slowly, and over 350 prosecution witnesses were yet to be examined.
Justifying its decision to grant bail to Andrabi, the SC cited statistics on low conviction rates in UAPA cases. “It is evident that the country-wide percentage of conviction under the UAPA for… 2019-23 hovers between 2% to 6%. In other words, there is 94% to 98% possibility of acquittal in such cases… When it comes to the Union Territory of Jammu and Kashmir, the percentage of conviction is abysmal, to say the least. For the aforesaid period, the annual rate of conviction is always less than 1%. It means that at the end of the trial, there is 99% possibility of acquittal in such cases,” it said.
“With these kinds of statistics staring at our face, the question is, should we continue the detention of the appellant or defer the consideration to a later stage, simply because the charges are serious,” it said.
