SC seeks reference to a larger Bench to resolve UAPA bail divergence

On 22 May, a two-judge Bench of the Supreme Court referred to a larger Bench the question of how Article 21 is to be applied against the statutory bar on bail under Section 43D(5) of the Unlawful Activities (Prevention) Act, (UAPA) 1967. The provision states that no person shall be granted bail for an offence under the UAPA if a court is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”.

The Bench of Justices Aravind Kumar and P.B. Varale simultaneously granted interim bail of six months to two Delhi riots conspiracy accused, Tasleem Ahmed and Khalid Saifi, on 11 conditions. In January 2026, a coordinate Bench, also consisting of Justice Kumar and Justice N.V. Anjaria, in Gulfisha Fatima v State (Govt. of NCT of Delhi) (2026) had denied bail to Umar Khalid and Sharjeel Imam noting that Article 21 cannot operate as a “trump card” for seeking bail. 

The matter was referred to a larger bench in the same week where a coordinate bench of Justices B.V. Nagarathna and Ujjal Bhuyan expressed “serious reservations” on the Gulfisha Fatima judgement. The Bench noted that the Court was bound to follow a three-judge bench decision—Union of India v K.A. Najeeb (2021)—which held that prolonged incarceration without trial warrants constitutional intervention, adding that statutory conditions for bail “will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.”

An authoritative pronouncement on K.A. Najeeb

Addressing the inconsistencies, Additional Solicitor General S.V. Raju had submitted to the Justices Kumar and Varale Bench that there was a “perceived divergence” in the manner in which K.A. Najeeb was being read and applied. He sought a reference to settle the law.

In the 22 May order, the Bench recorded that K.A. Najeeb recognised the legislative policy underlying special statutes while preserving the force of Article 21. K.A. Najeeb, it held, is “neither a charter for indefinite incarceration under the cover of Section 43D(5), nor a mathematical command that the mere passage of time, divorced from all surrounding circumstances, must automatically result in bail.”

The order turned next to Gulfisha Fatima. The Bench said that Gulfisha Fatima had proceeded on the very premise that K.A. Najeeb binds Benches of lesser strength, and had read the latter as a “principled safeguard against unconscionable detention” rather than a formula of universal application.

That position is exactly what Justices Nagarathna and Bhuyan, in Syed Iftikhar Andrabi v National Investigation Agency, Jammu (2026) sought to dismantle. The Bench granted bail to a Kashmiri appellant after almost six years in custody. It cast serious doubts on Gulfisha Fatima and Gurwinder Singh v State of Punjab (2024). Both of these judgements were authored by Justice Kumar. The Bench held that the judgements had hollowed out K.A. Najeeb by recasting it as a narrow factual exception. Additionally, it had shrunk K.A. Najeeb by answering a proposition it never advanced—that whether the mere lapse of time automatically yields bail.

Andrabi went further. It cited National Crime Records Bureau figures placed before Parliament to record conviction rates under UAPA in the low single digits—with the rate in Jammu and Kashmir hovering below one per cent. The Bench reasoned that pre-trial custody cannot operate as a sentence served without conviction. The Order noted that a Bench of lesser strength is bound by the law declared by a Bench of greater strength. Judicial discipline requires that a binding precedent be followed or, in case of doubt, referred to a larger Bench. A smaller Bench cannot dilute, circumvent or disregard the ratio of a larger one.

Justices Kumar and Varale’s Order treated those reservations with studied restraint. It declined to enter into any adjudication on their correctness: “Judgments of this Court are not to be answered by counter-observations from another Bench of equal strength. The discipline of precedent demands a higher institutional method.” That observation cuts in two directions. It is, on its face, a defence of Gulfisha Fatima against Andrabi’s rebuke. But the same logic also applies to Andrabi itself. A coordinate Bench, Justices Kumar and Varale held, cannot “by strong observations, effectively unsettle the ratio of an earlier coordinate Bench while continuing to sit in equal strength.” A doubt expressed in emphatic terms, the order added, “is still a doubt; it is not a declaration of law.” By that standard, Andrabi’s own corrective method, however persuasive on the substance, did not satisfy the discipline it preached.

The reference was framed broadly. The question, the Bench said, is not whether Article 21 survives Section 43D(5)—“It undoubtedly does.” The true question is how Article 21 is to be applied in a statutory field where Parliament has consciously restricted bail in respect of offences alleged to affect the security of the State. An unqualified reading that lapse of time must by itself compel bail could leave little room for courts to weigh centrality of role, protected witnesses, risk of intimidation, the reactivation of networks or whether delay is attributable to the accused. An equally unqualified insistence on the statutory bar “without regard to prolonged incarceration would imperil Article 21.”

Tasleem Ahmed and Khalid Saifi have remained in custody since 2020 in connection with the alleged larger conspiracy behind the February 2020 riots in north-east Delhi. Their bail pleas were rejected by separate Benches of the Delhi High Court on 2 September 2025. The Bench recorded that they had undergone substantial incarceration, that the trial was not likely to conclude immediately, and that the appellants themselves had invoked Gulfisha Fatima. The Bench granted them interim bail for six months. Conditions include a personal bond of Rs. 2,00,000 with two sureties, surrender of passports, a bar on leaving Delhi without the trial court’s permission, fortnightly reporting to the investigating officer, and a prohibition on public statements touching the merits of the case.

Gulfisha Fatima was criticised within days of its delivery for reframing prolonged incarceration as a contextual consideration rather than a rights-based violation. Andrabi has now disapproved of that reframing, and Friday’s order has disapproved of Andrabi’s manner of doing so without disturbing the substance of either. The papers have been directed to be placed before the Chief Justice on the administrative side. The reference is confined to the legal questions identified and does not express any opinion on the merits of the prosecution or on the guilt or innocence of the appellants.