The Supreme Court on Monday criticized its January 5 judgment denying bail to former JNU student Omar Khalid and activist Sharjeel Imam in the alleged larger conspiracy case linked to the 2020 Delhi riots, categorically asserting that “bail is the rule and imprisonment is the exception” even in prosecutions under the Unlawful Activities (Prevention) Act (UAPA).
A bench of Justices B V Nagrathna and Ujjal Bhuyan, while granting bail to Syed Iftikhar Andarabi, a resident of Jammu and Kashmir, in a narco-terrorism case investigated by the National Investigation Agency (NIA), expressed “serious reservations” about the reasoning adopted earlier this year by another two-judge bench comprising Justices Aravind Kumar and N V Angaria in the Delhi riots conspiracy case.
The court held that the January 5 judgment failed to properly apply the binding principles laid down by a larger three-judge bench in Union of India v. K. A. Najeeb (2021), which recognized that prolonged imprisonment and trial delays can override statutory restrictions on bail under Section 43D(5) of the UAPA.
While reading the operative portions of the judgment in open court, Justice Bhuiyan observed: “Bail is not an empty legal slogan. Rather, it is a constitutional principle flowing from Article 21, and the presumption of innocence is the cornerstone of any civilized society governed by the rule of law.”
“Even under UAPA, bail is the rule and imprisonment is the exception. Bail can only be denied in a particular case depending on the facts of that particular case,” the bench added.
This ruling represents one of the most severe judicial criticisms by a coordinating body of a recent Supreme Court ruling on bail under anti-terrorism laws.
The court also objected to the January ruling, because it ordered that Khaled and Imam could renew their application for bail only after questioning protected witnesses or after one year, whichever came first. According to the current body, this restriction constitutes a complete derogation of the right to freedom guaranteed by the Constitution.
The January 5 judgment rejected the bail pleas of Khalid and Imam in the Delhi riots conspiracy case, while granting relief to five other accused – Gilvisha Fatima, Meeran Haider, Shifaur Rehman, Muhammad Saleem Khan and Shadab Ahmed.
At the time, a bench of Justices Kumar and Anjaria held that Khalid and Imam played a “central and formative role” in the alleged conspiracy behind the February 2020 northeast Delhi riots, and ruled that lengthy imprisonment alone could not justify bail in UAPA cases where the courts had found a prima facie case.
This ruling also relied on the Supreme Court’s 2019 ruling in the case of NIA Vs Zahoor Ahmad Shah Watali, which significantly tightened bail standards under the UAPA by emphasizing that courts should refrain from making a detailed assessment of the evidence at the bail stage and instead assess whether the accusations appear to be true prima facie.
A bench of Justices Nagaratna and Bhuyan on Monday held that subsequent rulings by smaller benches had gradually diluted the constitutional safeguards laid down in the K.A. Najeeb case.
“This case raises an important question as to the interplay between Section 43D(5) of the UAPA and the constitutional guarantee of personal liberty under Article 21… More specifically, the issue relates to the propriety of smaller courts gradually deflating the constitutional force of the decision of a larger bench without ever explicitly disagreeing with it,” Justice Bhuiyan said.
The bench referred to the Supreme Court’s 2024 judgment in Gurwinder Singh v. State of Punjab and the January 2026 judgment in Gulfisha Fatima and the related Delhi riots cases, and observed that both took a “somewhat divergent view” from the constitutional path taken in earlier cases that dealt with lengthy imprisonment.
In the Gurunder Singh case, another two-judge bench held that the traditional doctrine of “bail is the rule” has limited application under the UAPA and developed a “dual test” under which courts are first required to determine whether the charges are prima facie true before considering normal bail factors such as risk of flight or possibility of tampering with evidence.
On Monday, the Supreme Court strongly rejected that formula.
“With respect, this test does not flow either from the text of Section 43D(5) of the UAPA, nor from Najib. In fact, on the contrary, in Najib where it is categorically stated that Section 43D(5) provides nothing more than another probable cause for denial of bail, in addition to well-established considerations such as possibility of tampering with evidence,” Justice Bhuyan noted.
The authority stressed that judicial discipline requires smaller benches to follow up on the decisions of larger courts.
“A decision made by a less powerful tribunal is bound by the law declared by a tribunal of greater power. Judicial discipline stipulates that such binding precedent must be followed in full or, in case of doubt, referred to a larger tribunal. A smaller tribunal cannot dilute, circumvent or ignore the proportion of a larger tribunal.”
The court confirmed that the ruling in the Najib case still governs this area.
In Najib’s case, the Supreme Court granted bail to a UAPA defendant who had spent more than five years in custody, noting that there were still 276 witnesses who needed to be cross-examined, and that the trial was unlikely to conclude within a reasonable time. The court held that constitutional courts can grant bail despite the legal prohibition where long-term imprisonment violates Article 21.
These remarks came during the bail of Andrabi, who has been detained since 2020 in a drug terror case registered by the NIA in Jammu and Kashmir. While the Jammu and Kashmir and Ladakh High Courts denied him bail in August 2025, citing the seriousness of the allegations and alleged links with cross-border terror activists, the apex court noted that no smuggled goods were recovered from him directly and he had already undergone nearly five years of imprisonment.
The Board also pointed to official conviction statistics under the UAPA.
“From 2019 to 2023, NCLB data shows that the conviction rate in Jammu and Kashmir was 0.89% in 2023…The all-India figure is between 2% and 6%. Thus, the annual acquittal rate in Jammu and Kashmir is about 99%,” Justice Bhuiyan observed.
Ultimately, the Court held that Wattali could not be invoked to justify “indefinite imprisonment” and stressed that constitutional courts must remain aware of the reality of prolonged pretrial detention even in terrorism prosecutions.
“Therefore, the position of law emerging from Najib and Sheikh Javed Iqbal is clear. Watali cannot be invoked to justify indefinite detention of the accused under the UAPA,” the bench said.
