Delhi Police may seek larger Bench reference on UAPA bail curbs amid ‘conflicting’ coordinate Bench rulings

A Supreme Court bench, in its May 18, 2026 ruling, reaffirmed that "bail is the rule and jail is the exception" even under the Unlawful Activities (Preventio...

What Happened

A Supreme Court bench, in its May 18, 2026 ruling, reaffirmed that "bail is the rule and jail is the exception" even under the Unlawful Activities (Prevention) Act (UAPA), 1967, and that Section 43D(5) cannot override the constitutional guarantee under Article 21.
The bench expressed serious reservations about a January 2026 judgment by a two-judge coordinate bench (Gulfisha Fatima v. State) that had denied bail, finding it failed to properly apply the three-judge bench precedent in Union of India v. KA Najeeb (2021).
The bench also questioned the two-judge bench ruling in Gurwinder Singh v. Union of India (2024) on the same grounds of not following the KA Najeeb precedent.
In response, the prosecution side indicated it would consider approaching the Chief Justice of India to refer the issue to a larger bench, given the now-conflicting views between coordinate two-judge benches.
The court underlined that a smaller bench cannot dilute or disregard the ratio of a larger bench — it can only follow the precedent or refer up to the Chief Justice for a larger bench allocation.

Static Topic Bridges

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

The UAPA was originally enacted in 1967 to deal with activities directed against the sovereignty and integrity of India. It has been amended significantly, most recently in 2019, which expanded the power to designate individuals (not just organisations) as terrorists. Section 43D was inserted by the UAPA (Amendment) Act, 2008, following the 2008 Mumbai attacks, and introduced a stringent bail bar.

Section 43D(5): No accused shall be released on bail if the court, on a perusal of the case diary or report made under Section 173 of the CrPC, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
The effect is to reverse the ordinary presumption of innocence for bail purposes: unless the prosecution's charge sheet fails to establish a prima facie case, bail must be denied.
Unlike the ordinary bail standard (which considers flight risk, evidence tampering, and gravity of offence), UAPA bail requires the court to form a view on prima facie guilt at the pre-trial stage.
The National Investigation Agency (NIA) is the primary agency that prosecutes UAPA offences at the national level.

Connection to this news: The tension in this case arises from the question of whether Section 43D(5)'s prima facie bar can be permanently maintained even when trials drag on for years — or whether prolonged incarceration itself becomes an independent constitutional ground for bail.

KA Najeeb (2021) — The Three-Judge Bench Precedent

Union of India v. KA Najeeb (2021) is a landmark three-judge bench Supreme Court ruling holding that courts retain the power to grant bail under the UAPA despite Section 43D(5) when prolonged incarceration violates an accused's fundamental right to liberty under Article 21 of the Constitution.

The ruling established that the right to speedy trial is a component of the right to life and personal liberty (Article 21).
Prolonged incarceration without trial completion can itself constitute a ground for bail, independent of the prima facie bar in Section 43D(5).
A three-judge bench ruling is binding on all two-judge benches of the same court.
Subsequent two-judge benches in Gulfisha Fatima (2026) and Gurwinder Singh (2024) are alleged to have deviated from this precedent without referring the matter upward.

Connection to this news: The May 2026 ruling reaffirms KA Najeeb and signals that the apex court views the earlier two-judge deviations as a breach of judicial discipline — setting the stage for a potential larger bench reference to authoritatively settle the law.

Judicial Hierarchy and the Doctrine of Binding Precedent (Stare Decisis)

Indian constitutional jurisprudence follows the common law doctrine of stare decisis: a court is bound by the ratio decidendi (binding principle) of decisions by courts of coordinate or superior strength. Within the Supreme Court, a bench of greater numerical strength prevails over a bench of lesser strength.

A two-judge (Division) Bench is bound by three-judge and larger Constitutional Bench rulings of the Supreme Court.
If a smaller bench disagrees with an earlier larger-bench ruling, it must refer the matter to the Chief Justice of India (CJI) for allocation to an appropriately constituted bench — it cannot simply deviate.
A "coordinate bench" reference occurs when two benches of equal strength reach conflicting conclusions; resolution requires a larger bench.
Article 141 of the Constitution declares that the law declared by the Supreme Court shall be binding on all courts within India.

Connection to this news: The conflict between the May 2026 ruling and the January 2026 two-judge bench ruling in Gulfisha Fatima is precisely the kind of coordinate-bench conflict that demands a larger bench reference — the doctrine of binding precedent makes resolution essential for consistent judicial administration.

Key Facts & Data

UAPA originally enacted: 1967; major amendments in 2004, 2008, and 2019.
Section 43D(5) introduced by: UAPA (Amendment) Act, 2008.
KA Najeeb judgment: three-judge bench, 2021; held prolonged incarceration is an independent bail ground under Article 21 even in UAPA cases.
Conflicting rulings: Gurwinder Singh v. Union of India (2024) and Gulfisha Fatima v. State (January 2026) — both two-judge benches, alleged to have not followed KA Najeeb.
The May 18, 2026 ruling reaffirms KA Najeeb and warns against "hollowing out" constitutional protections.
Article 141 of the Constitution: law declared by the Supreme Court is binding on all courts in India.
Article 21 of the Constitution: no person shall be deprived of life or personal liberty except according to procedure established by law.