Bail under UAPA: How different Supreme Court benches have delivered different rulings in the past

A Supreme Court bench of Justices B.V. Nagarathna and Ujjal Bhuyan, while granting bail to a Jammu & Kashmir accused in a narco-terror funding case (*Syed If...

What Happened

A Supreme Court bench of Justices B.V. Nagarathna and Ujjal Bhuyan, while granting bail to a Jammu & Kashmir accused in a narco-terror funding case (Syed Iftikhar Andrabi v. NIA), expressed serious reservations about a recent coordinate bench verdict that had denied bail to accused persons in the 2020 Delhi riots case.
The bench held that even under the Unlawful Activities (Prevention) Act (UAPA), "bail is the rule and jail is the exception," affirming that the stringent bail bar under Section 43D(5) cannot override the fundamental rights to liberty and speedy trial under Articles 21 and 22.
The court underscored that smaller benches cannot dilute, circumvent, or disregard the ratio laid down by larger benches, and that if a smaller bench disagrees with a larger bench's ruling, the correct course is to refer the matter to the Chief Justice of India for allocation to a larger bench.
The ruling reinforced the precedent set in Union of India v. K.A. Najeeb (2021), where a three-judge bench had held that prolonged incarceration can justify bail even under UAPA despite Section 43D(5) restrictions, while criticising subsequent coordinate bench judgments in Gurwinder Singh and Gulfisha Fatima for adopting a divergent approach.

Static Topic Bridges

Unlawful Activities (Prevention) Act, 1967 — Section 43D(5)

The UAPA, originally enacted in 1967 and substantially amended in 2004, 2008, and 2019, is India's primary anti-terror legislation. Section 43D(5), introduced by the UAPA Amendment Act 2008, prohibits courts from granting bail to an accused if there are reasonable grounds to believe that the accusations against them are prima facie true. This creates a presumption against bail and places a heavy burden on the accused to demonstrate that the case on record is fabricated.

Section 43D(5) operates as a stricter standard than the ordinary CrPC/BNSS bail provisions.
In NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, the Supreme Court held that courts must adopt a "lighter degree of satisfaction" in assessing prima facie truth, limiting the scope for judicial scrutiny at the bail stage.
Section 43D(2) further extends the period of remand in UAPA cases up to 180 days (as against 60/90 days under ordinary law) before charge-sheet filing is mandatory.
The NIA Act 2008 establishes Special NIA Courts with designated judges to try UAPA offences, with special rules on prosecution sanction and appeal procedures.

Connection to this news: The bench's ruling challenges the narrow reading of Section 43D(5) from Watali and reasserts that constitutional courts retain inherent power to grant bail when continued incarceration itself violates Article 21.

Article 21 and the "Bail is the Rule" Principle

Article 21 of the Constitution guarantees the right to life and personal liberty, and cannot be suspended even during emergencies (post-44th Amendment). The Supreme Court has repeatedly derived a robust bail jurisprudence from Article 21, holding that deprivation of liberty must be minimally necessary and justified. The maxim "bail is the rule, jail is the exception" traces to State of Rajasthan v. Balchand (1977) and has been reaffirmed in the context of special laws including UAPA through K.A. Najeeb (2021).

Union of India v. K.A. Najeeb (2021) 3 SCC 713 — three-judge bench held that Section 43D(5) does not oust the constitutional courts' power to grant bail where Part III rights are violated by prolonged incarceration without trial.
The right to speedy trial, derived from Article 21, has been held to override statutory bail bars where detention becomes indefinite.
The 44th Constitutional Amendment (1978) made Article 21 non-suspendable even under Article 359 during national emergencies.

Connection to this news: The court applied the Najeeb precedent to reaffirm that constitutional courts must read Section 43D(5) subject to, not in derogation of, Articles 21 and 22.

Coordinate Bench Discipline and Binding Precedent

Under the doctrine of stare decisis and the principle of judicial discipline, a smaller bench of the Supreme Court is bound by the ratio decidendi of a larger bench. If a coordinate or smaller bench disagrees with the larger bench's ruling, it must refer the matter upward rather than effectively overruling by distinguishing or ignoring binding precedent.

A two-judge bench is bound by a three-judge bench; a three-judge bench is bound by a Constitution bench (five or more judges).
Coordinate benches (equal-strength benches) may express disagreement and refer to a larger bench, but cannot unilaterally depart from established ratio.
The Chief Justice of India holds the power to constitute larger benches to resolve conflicts between coordinate bench rulings.
This doctrine is rooted in Articles 141 and 145 of the Constitution.

Connection to this news: The bench criticised the trend of smaller/coordinate benches in UAPA bail matters effectively circumventing K.A. Najeeb without formally referring the conflict, thereby creating contradictory judicial precedents.

Key Facts & Data

UAPA was originally enacted in 1967; major amendments in 2004, 2008, and 2019 (expanding designated terrorist provisions).
Section 43D(5) bail bar introduced via the 2008 amendment.
NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 — foundational case on the prima facie standard under Section 43D(5).
Union of India v. K.A. Najeeb (2021) 3 SCC 713 — three-judge bench; constitutional courts retain bail power despite Section 43D(5).
Syed Iftikhar Andrabi v. NIA (2026 INSC 503) — the immediate case triggering the present ruling.
NIA Act 2008 establishes dedicated Special NIA Courts; bail applications in NIA cases are heard by these courts and then by High Courts/Supreme Court.
Remand period under UAPA: up to 30 days police custody + 180 days total judicial custody before charge-sheet, compared to 60/90 days under ordinary criminal law.
The 44th Constitutional Amendment (1978) made Article 21 non-suspendable during emergencies.