The Supreme Court on Monday observed that bail should remain the rule and jail the exception even in cases under the Unlawful Activities (Prevention) Act, 1967 (UAPA), while expressing serious reservations about an earlier ruling by another Bench that denied bail to activist Umar Khalid in the Delhi riots case.
A Bench of Justice BV Nagarathna and Justice Ujjal Bhuyan made the observations while granting bail to a Kupwara resident who has remained in custody since June 2020 in a narco-terrorism case investigated by the National Investigation Agency (NIA).
In particular, the Court expressed reservations over the judgment in Gulfisha Fatima v. State, which dealt with bail pleas in the Delhi riots conspiracy case. While some accused secured bail in that matter, activist Umar Khalid and Sharjeel Imam were denied relief.
The bench said it had serious reservations abouth the Gulfisha Fatima order that denied bail. It further said that judgment would have it believe that Najeeb is only a narrow and exceptional departure from Section 43D(5) and justified in extreme factual situations. The Court observed that it would hollow out the import of observations in the Najeeb case.
The Bench stressed that the statutory restrictions contained in Section 43D(5) of the UAPA must operate subject to the constitutional guarantees under Articles 21 and 22.
The Court stated without any doubt that even under anti-terror laws like the UAPA, getting bail should be the normal standard, and being kept in jail should be the exception. However, judges can still deny bail if the specific facts of a case justify it
The Court further underscored that the Supreme Court’s earlier ruling in Union of India v. KA Najeeb remains binding law and cannot be diluted by smaller Benches. In the Najeeb judgment, a three-judge Bench had held that the right to speedy trial under Article 21 applies equally to UAPA accused, meaning prolonged incarceration without trial could justify grant of bail.
The Court emphasized that smaller benches are legally bound by the rulings of larger benches. Under judicial discipline, they must either fully implement the established precedent or, if they have doubts, refer the matter to a larger bench
It clarified that if a smaller Bench disagrees with the reasoning of a larger Bench, the only course open is to refer the matter to the Chief Justice of India for the constitution of a larger Bench.
The Bench specifically noted that certain two-judge Bench decisions, including the ruling in the Umar Khalid bail case, appeared to deviate from the principles laid down in the Najeeb judgment.
The Court rejected the argument that delays in UAPA trials may not justify bail, reiterating that Article 21 protections apply irrespective of the nature of the allegations.
The Court pointed out that, logically, the more severe the charges against someone are, the faster their trial needs to move.
It also criticised the Jammu & Kashmir and Ladakh High Court’s approach in refusing bail to the accused despite his prolonged incarceration, holding that reliance on the Watali judgment could not justify indefinite detention.
The Bench emphasised that even the existence of a prima facie case cannot be used to keep an undertrial prisoner incarcerated indefinitely.
The Court pointed out that the Najeeb case was decided specifically to stop anti-terror laws from being used as the only reason to deny bail. It warned that using Section 43D(5) this way completely destroys an accused person’s constitutional right to a fast trial.
The case concerned Syed Iftikhar Andrabi, a resident of Handwara in Kupwara district of Jammu & Kashmir, who was arrested by the NIA on June 11, 2020.
According to the NIA, Andrabi was allegedly part of a cross-border narcotics syndicate that procured heroin from the Tangdhar border area and funnelled proceeds to terror organisations including Lashkar-e-Taiba and Hizbul Mujahideen.
He faces charges under provisions of the Narcotic Drugs and Psychotropic Substances Act, the UAPA and Section 120-B of the Indian Penal Code.
After the Special NIA Court rejected his bail plea in August 2024, Andrabi approached the High Court of Jammu & Kashmir and Ladakh, which also dismissed his plea on August 19, 2025, citing the seriousness of the allegations and the early stage of trial.
Challenging that order before the Supreme Court, Andrabi argued that his prolonged detention violated his constitutional rights.
While granting him bail, the top court also highlighted the poor conviction rates in UAPA cases, particularly in Jammu & Kashmir.
Referring to National Crime Records Bureau statistics for the period between 2019 and 2023, the Court noted that the national conviction rate in UAPA cases ranged between 1.5% and 4%, while in Jammu & Kashmir it remained below 1% throughout the period.
Highlighting the regional legal landscape, the Bench observed that trials in Jammu & Kashmir yield a 99% probability of acquittal, illustrating that the vast majority of those detained are ultimately found not guilty.
The Court ultimately directed Andrabi’s release on bail subject to conditions, including regular appearance before the police, cooperation with the investigation and surrender of his passport.
The post Bail in UAPA cases: Supreme Court reiterates ‘bail is rule’ norm, says Umar Khalid bail rejection concerning appeared first on India Legal.