The Supreme Court was once again drawn into a constitutional debate on the scope of personal liberty under the Unlawful Activities (Prevention) Act, after a two-judge bench categorically asserted earlier this week that “bail is the rule and imprisonment is the exception” even in terrorism-related prosecutions, while the Delhi Police rushed to another bench to hear the Delhi riots cases to press for the case to be resolved by a larger bench.
The context is the May 18 judgment of a bench of Justices B V Nagrathna and Ujjal Bhuyan granting bail to Syed Iftikhar Andrabi, a resident of Jammu and Kashmir, in a narco-terrorism case being investigated by the National Investigation Agency. In a strongly worded ruling, the bench held that the constitutional courts cannot allow Section 43D(5) of the UAPA – the provision that imposes stringent bail conditions – to override the guarantees of liberty and speedy trial under Article 21 of the Constitution.
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The judgment openly questioned the logic adopted by another two-judge bench headed by Justice Aravind Kumar in January this year while denying bail to former Jawaharlal Nehru University student Omar Khalid and activist Sharjeel Imam in the alleged larger conspiracy case linked to the 2020 northeast Delhi riots.
Appearing before the Justice Kumar-led court in the Delhi riots-related bail proceedings, Additional Solicitor General SV Raju argued that the differing judicial views on bail under the UAPA required formal settlement by a larger bench.
The unfolding judicial dispute has revived a fundamental constitutional question of whether legal restrictions under anti-terrorism laws override the constitutional obligation of liberty and speedy trial.
Constitutional courts versus legal prohibition
The crux of the controversy relates to Section 43D(5) of the UAPA, which severely restricts the grant of bail if the court finds that the accusations against the accused are “prima facie true”.
For years, investigating agencies have relied heavily on the Supreme Court’s 2019 ruling in National Investigation Agency v. Zahoor Ahmad Shah Watali, which stated that courts should not conduct detailed examination of evidence while considering bail under the UAPA. This ruling significantly tightened the bail limit and was repeatedly invoked to oppose the release of defendants in terrorism-related trials.
However, the legal landscape changed dramatically with the 2021 Supreme Court judgment in Union of India v. K. A. Najeeb, delivered by a three-judge bench.
In that case, the court dealt with a defendant who had spent more than five years in detention while the trial showed no signs of ending anytime soon. The bench held that the Constitutional Courts retain the power to grant bail despite statutory restrictions as long-term imprisonment violates Article 21.
The recent judgment by Justices Nagaratna and Bhuyan strongly affirms this principle and makes clear that the Najib ruling was never intended to be treated as a narrow exception that applies only in exceptional circumstances.
The court held: “Section 43-D(5) remains subordinate to Section 21 at all times and the Constitutional Court need not suspend bail for an accused who is in the garb of Section 43-D(5).”
The May 18 ruling repeatedly stressed that constitutional guarantees cannot be subject to legal restrictions. According to the panel, the “rigor” of section 43D(5) “disappears” once imprisonment becomes excessive and delay of trial becomes unreasonable.
Most importantly, the Court declared that the famous principle that “bail is the rule and imprisonment is the exception” is not merely a procedural concept derived from criminal law statutes, but a constitutional doctrine rooted in Articles 21 and 22 and the presumption of innocence.
How the Court narrowed and criticized subsequent rulings
Much of the latest ruling was devoted to clarifying what the court described as a serious misunderstanding of the Watali precedent.
According to the jury, the Whatale case arose in a very specific factual context in which the High Court effectively conducted a “mini-trial” at the bail stage by assessing the admissibility and reliability of the evidence. The Supreme Court intervened in that case because the Supreme Court went beyond the scope of limited scrutiny permitted at the bail stage.
The latest ruling says Watali never intended to impose a near-absolute ban on bail under the UAPA.
The judgment therefore criticized the interpretation adopted in subsequent decisions such as the Gurwinder Singh v. State of Punjab case and the January 2026 Delhi riots ruling in the Julvisha Fatima case.
In the Gurwinder Singh case, a two-judge bench developed what it called the “double test,” holding that courts must first determine whether the accusations are prima facie true before even considering normal bail factors such as the possibility of escape or witness tampering.
Justice Bhuiyan, who wrote the judgment for the bench, rejected this approach outright. The court noted: “With respect, this test does not flow from the text of Article 43-D(5) nor from Najeeb.”
The panel warned that if this formulation were accepted, the state would only need to cross an apparently low threshold to keep the accused in prison for years, effectively turning pre-trial detention into a punishment.
The ruling noted that Najib was in fact aiming to prevent precisely such an outcome.
In one of the strongest paragraphs of the ruling, the court said subsequent rulings appeared to have “invented and then destroyed” a proposal that Najib himself had never put forward.
“Najib did not warn the courts against treating imprisonment as the only factor that favors bail. Instead, he was warning against treating legal prohibition as the only factor that justifies continued detention by ignoring constitutional principles,” the report said.
Judicial discipline and the importance of bench strength
Beyond bail jurisprudence, the ruling also turns out to be an important lesson on judicial discipline and precedent within the Supreme Court itself.
The court repeatedly stressed that Najib, being a three-judge decision, is binding on all smaller bodies. “The smaller seat cannot dilute, circumvent or ignore the larger seat proportion.”
This aspect has become particularly important because the bench directly questioned the validity of the January 5 ruling denying bail to Khalid and Imam – a rarity in Supreme Court jurisprudence where the coordinating body rarely expresses its disagreement with a recent ruling.
The court made it clear that if smaller benches do not agree to a larger ruling, the correct course is to refer the matter to the Chief Justice of India to constitute a larger bench rather than developing divergent interpretations.
This is exactly the opening that the Delhi Police is now trying to use.
During the hearings in the bail applications of Delhi riots accused Taslim Ahmed and Abdul Khalid Saifi, ASG Raju on Tuesday argued that the May 18 judgment and earlier judgments reflect a conflicting approach on UAPA’s bail and thus require a formal decision by a larger judicial bench.
These submissions are important because the January 5 ruling, which was criticized by the subsequent bench, was delivered by Justice Kumar himself, who continues to hear matters related to the Delhi riots. The bench has now given time to the Delhi Police to study the May 18 judgment before proceeding further.
The biggest constitutional battle
It relates to the emerging constitutional tension These provisions balance national security and personal freedom. The state’s consistent argument has been that anti-terrorism laws operate differently from ordinary criminal law because the presumption of innocence should be subject to national security concerns at the bail stage. Assistant Secretary-General Raju reiterated this position before the court, saying that Section 43D(5) represents a deliberate legislative departure from ordinary criminal jurisprudence.
However, the latest ruling strongly resists any suggestion that anti-terrorism laws can completely replace constitutional guarantees.
The Court explicitly held that Article 21 applies “regardless of the nature of the crime,” and that constitutional courts retain ultimate responsibility to ensure that legal restrictions do not become tools for indefinite detention.
The ruling also highlighted alarming conviction statistics under the UAPA. Referring to data from the National Crime Records Bureau, the bench noted that conviction rates in UAPA cases remain very low, especially in Jammu and Kashmir where the annual conviction rate was said to be less than 1%.
“With these kind of statistics staring us in the face, the question is: Should we continue to detain the appellant or postpone consideration of him to a later stage, simply because the charges are serious?” asked the May 18 ruling.
This reasoning reflects growing judicial concern that prolonged pretrial detention under special laws may itself become a punishment, especially when trials move slowly and conviction rates remain low.
The ongoing controversy therefore represents one of the most important judicial debates on freedom and anti-terrorism laws in recent years.
The May 18 ruling does much more than grant bail to one accused. It attempts to restore a constitutional basis that the Court believes has been progressively narrowed by subsequent interpretations of Section 43D(5) of the UAPA.
By reiterating that “bail is the rule and imprisonment is the exception” even in UAPA trials, the bench sought to restore the primacy of Article 21 over statutory restrictions. Equally important, it reminded lower tribunals and courts that constitutional guarantees cannot be indirectly diluted by narrower readings of binding precedent.
Meanwhile, the Delhi Police’s push to create a larger bench suggests that the legal battle is far from over. The Supreme Court may now have to reach a decisive decision on whether long prison sentences and trial delays should override the strict legal barriers to bail under anti-terrorism laws.
