After a judgement by the Supreme Court criticising its own verdict rejecting former Jawaharlal Nehru University (JNU) student leader Umar Khalid's bail plea on Monday, the Delhi Police has requested the top court that the issue of granting bail under the Unlawful Activities (Prevention) Act (UAPA) may require consideration by a larger bench in view of apparently conflicting rulings by two-judge benches.
This comes even as the latest judgement by a two-judge bench comprising Justices Ujjal Bhuyan and BV Nagarathana clarified that the 2021 three-judge bench verdict in the KA Najeeb case has already set the precedent and a lower-strength bench cannot ignore the principle of "bail is rule and jail an exception".
Over the past few years, the Supreme Court has on several occasions encouraged the lower courts to adopt the principle of "bail is rule and jail an exception" even in UAPA cases, holding that prolonged incarceration with delay in trial would pave grounds for bail.
However, in January this year, the top court's two-judge bench comprising Justices Aravind Kumar and NV Anjaria, while denying bail to Umar Khalid and another JNU student leader, Sharjeel Imam, in the 2020 Delhi riots conspiracy case, observed that they both had a prima facie more central role than other accused persons and under a stringent law like the UAPA, bail cannot always be granted on grounds of delayed trial.
What UAPA Law Says On Bail
The UAPA was first enacted in 1967 to deal with the unlawful activities threatening India's sovereignty and integrity. In the wake of the 2008 Mumbai terror attacks, the central government enacted the UAPA Amendment Act, 2008, introducing Section 43D(5).
This provision mandated denial of bail if the court found reasonable grounds to believe the accusations were prima facie true. In practice, it made bail extremely difficult, as courts were largely confined to assessing the prosecution's chargesheet filed by the investigation agency, while the accused could not rely on evidence outside the chargesheet in their defence.
With amendments made in 2004, 2008 and 2019, the UAPA evolved into India's anti-terror law. A court couldn't grant bail if the prosecution shows a prima facie case against the accused.
Evolution Of Bail Jurisprudence Under UAPA
2016 - Supreme Court Says Stringent Bail Conditions Under Special Criminal Law Only Applicable If Trial Is Speedy
Angela Sontakke spent nearly five years in custody on charges of promoting Maoist ideology through the Golden Corridor Committee of the banned CPI-Maoist group. In 2016, a Supreme Court bench of Justices Ranjan Gogoi and Prafulla Pant granted her bail, holding that the seriousness of the offence had to be weighed against the prolonged incarceration and the improbability of a speedy trial. The court also noted that she was charged in 18 cases, acquitted in 14, discharged in two and granted bail in the remaining. Relying on the 1996 Shaheen Welfare Association judgement, the court granted bail despite UAPA's Section 43D(5), reaffirming that stringent bail restrictions under special laws cannot override Article 21 rights when trials are inordinately delayed.
2019 - Supreme Court Says Courts To Assess If Charges Appears To Be True Without Going Into Merits
A bench of Justices AM Khanwilkar and Ajay Rastogi in Zahoor Watali's case held that courts must largely accept the prosecution's version at the bail stage, evidence need not be tested rigorously during bail hearings, and only a broad prima facie assessment is required. Watali was accused of acting as a conduit for the transfer of funds received from a terrorist to a secessionist leader and for helping them wage a war against the government. The Delhi High Court granted him bail, but its order was set aside by the Supreme Court. In this verdict, the court held that 'prima facie true' would mean that the evidence collated by the investigating agency must prevail until contradicted by other evidence and, on the face of it, revealed the complicity of such accused.
2021 - Supreme Court Says Delay In Trial Would Lead to Bail Even Under UAPA
In the Union of India vs KA Najeeb, the Supreme Court granted bail to an accused under the Unlawful Activities (Prevention) Act, 1967, marking a significant shift in its approach to bail under stringent anti-terror legislation. KA Najeeb, accused in the 2010 attack on a Malayalam professor over alleged blasphemous exam questions, was arrested in 2015 after being on the run for five years and remained in custody as an undertrial for over five and a half years. While the state argued that strict bail standards under the UAPA barred relief, Najeeb contended that the prolonged delay in trial violated his fundamental right to a speedy trial under Article 21. Upholding the Kerala High Court's bail order, the Supreme Court held that excessive delay in trial could justify bail even under special anti-terror laws, reaffirming that constitutional protections of personal liberty cannot be undermined by procedural delays.
Diverging Verdicts From Supreme Court
In 2024, the Supreme Court, while granting bail to a man accused in a counterfeit currency case under the Unlawful Activities (Prevention) Act, 1967 (UAPA), observed that the judgement in the case of NIA vs Zahoor Watali cannot be cited as a precedent to deny bail in UAPA cases where the accused has suffered long incarceration.
Similar such statements were repeated in several cases by the top court, emphasising that "bail is the rule and jail an exception".
The January 2026 judgement by the Supreme Court denying bail to Umar Khalid also relied upon its 2019 Zahoor Watali verdict, which significantly tightened bail standards under the UAPA by holding that courts must refrain from conducting a detailed evaluation of evidence at the bail stage and instead only assess whether the accusations appear prima facie true.
While denying bail to Umar Khalid, the top court said that the trial delay is not a trump card to automatically get bail. A bench headed by Justice Aravind Kumar held that the material placed by Delhi police disclosed a prima facie case against Khalid and Imam in the Delhi riots conspiracy case.
The court observed that the prosecution materials prima facie disclosed "a central and formative role" and "involvement in the level of planning, mobilisation and strategic direction extending beyond episodic and localised acts".
The top court clarified that the UAPA is a special law and represents a conscious legislative departure from the ordinary principles governing bail.
It further clarified that although constitutional courts retain the power of judicial scrutiny, such scrutiny is confined within the limits prescribed by the UAPA. The Supreme Court noted that the definition of "terrorist act" under Section 15 of the UAPA is not restricted to the use of bombs or conventional weapons. Parliament has extended the definition to include acts committed by "any other means" with the intent to threaten the security of the state or to strike terror, including acts that disrupt civic life or paralyse normal economic activity.
At the bail stage, the court said the task is limited to assessing whether the allegations disclose a prima facie nexus to such provisions of law.
Umar Khalid's judgement was not the only one which ignored Najeeb's precedent. In Gurwinder Singh vs State of Punjab (2024), the court cautioned against mechanical invocation of delay to seek bail, suggesting bail should only be considered if it also satisfies the test under Section 43(D)(5) of the UAPA.
This judgement has again come under the scanner after a division bench of Justices Ujjal Bhuyan and BV Nagarathana criticised it on Monday, observing that it appeared to dilute the binding precedent laid down by a larger bench in the Union of India vs KA Najeeb case.
"They cannot dilute, circumvent or disregard binding precedent," Justice Bhuyan said while pointing out that two judges who denied bail to Khalid ignored a binding three-judge bench judgement of the Supreme Court which said bail is the rule and jail an exception.
The observations came while the court granted bail to Syed Iftikhar Andrabi, a Jammu and Kashmir resident jailed since June 2020 in a narco-terror case investigated by the National Investigation Agency (NIA).
