After benches differ on UAPA bail, SC refers question to larger bench

A two-judge bench of the Supreme Court referred to a larger bench the question of how Article 21 (right to life and personal liberty) is to be applied agains...

What Happened

A two-judge bench of the Supreme Court referred to a larger bench the question of how Article 21 (right to life and personal liberty) is to be applied against the statutory bar on bail under Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA), 1967.
The reference arose after two coordinate benches read the landmark 2021 judgment in Union of India v. K.A. Najeeb differently, creating a conflict on the extent to which constitutional rights can override the stringent bail conditions in the UAPA.
The specific trigger was the judgment in Syed Iftikhar Andrabi v. National Investigation Agency, delivered by a bench of Justices B.V. Nagarathna and Ujjal Bhuyan, which expressed reservations about earlier rulings in Gulfisha Fatima and Gurwinder Singh, finding those judgments adopted a comparatively restrictive approach to bail.
The referring bench clarified that the question is not whether Article 21 survives Section 43D(5) — "It undoubtedly does" — but rather how Article 21 operates within a statutory field where Parliament has consciously restricted bail for offences affecting State security.
Simultaneously, the bench granted interim bail of six months to two Delhi riots conspiracy accused — Tasleem Ahmed and Khalid Saifi — on 11 conditions, in the case of Tasleem Ahmed v. State Govt. of NCT of Delhi.

Static Topic Bridges

UAPA — Section 43D(5) and the Bail Bar

The Unlawful Activities (Prevention) Act, 1967 (UAPA) is India's primary counter-terrorism statute. Significantly amended in 2008 and 2019, it provides for designation of organisations and individuals as terrorists and imposes severe restrictions on bail.

Section 43D(5) provides that no person accused of an offence under Chapters IV and VI of UAPA shall be released on bail if the court, on a perusal of the case diary or the chargesheet, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
This inverts the ordinary bail jurisprudence: bail is presumptively denied unless the court affirmatively finds the prosecution's case is not prima facie made out.
The 2019 amendment to UAPA allowed the government to designate individuals (not just organisations) as terrorists — a provision also challenged before courts.
UAPA replaced earlier repealed laws: Terrorist and Disruptive Activities (Prevention) Act (TADA, repealed 1995) and Prevention of Terrorism Act (POTA, repealed 2004), each of which also contained stringent bail restrictions.

Connection to this news: The entire reference turns on whether Section 43D(5)'s near-absolute bail bar can be moderated by Article 21, particularly when an accused has been incarcerated for prolonged periods without trial completion.

Landmark UAPA Bail Jurisprudence — Key Cases

The Supreme Court has progressively shaped the UAPA bail landscape through a series of judgments that have, at times, pulled in different directions.

NIA v. Zahoor Ahmad Shah Watali (2019): The Court held that under Section 43D(5), the standard of satisfaction for refusing bail is a prima facie assessment of the materials on record, without delving into merits. This effectively made bail very difficult once charges are framed, as courts must accept the prosecution's case at face value.
Union of India v. K.A. Najeeb (2021): A constitutional bench held that even under UAPA's stringent bail bar, Article 21 survives, and courts may grant bail when prolonged incarceration without trial completion violates fundamental rights — particularly where there is no proximate likelihood of trial concluding.
Thwaha Fasal case (2021): The Supreme Court reiterated that constitutional courts retain the power to grant bail even under UAPA when the accused has suffered excessive pre-trial detention.
The 2026 conflict: Benches applying Najeeb reached different conclusions on its scope — some reading it broadly (bail permissible after prolonged detention), others narrowly — necessitating the larger bench reference.

Connection to this news: The current reference is directly traceable to divergent applications of Watali and Najeeb, as two coordinate benches interpreted Najeeb's Article 21 gateway differently in cases involving security offences.

Supreme Court Larger Bench Reference — Article 145(3)

The Constitution provides a mechanism for the Supreme Court to refer questions of law to larger benches to ensure uniformity and authoritative resolution.

Article 145(3) of the Constitution mandates that any case involving a substantial question of law as to the interpretation of the Constitution must be heard by a bench of at least five judges (Constitution Bench).
Beyond constitutional questions, the Supreme Court's internal practice — governed by its Rules of Procedure — permits any bench to refer a question of law to a larger bench when it disagrees with a previous bench of the same strength or detects a conflict among benches.
In UAPA jurisprudence, the conflict between the Article 21 right and Section 43D(5) is fundamentally constitutional, which strengthens the case for a five-judge Constitution Bench.
Larger bench references are binding on all coordinate and smaller benches of the Supreme Court and on all High Courts.

Connection to this news: The two-judge bench identified a conflict between coordinate benches on the precise legal question — making a larger bench reference both procedurally necessary and constitutionally appropriate under Article 145(3).

Due Process vs. National Security Paradigm

UAPA sits at the intersection of two constitutional imperatives: the State's duty to protect national security and the individual's guarantee of due process and personal liberty under Article 21.

India's anti-terror law framework has evolved from TADA (1985–1995) to POTA (2002–2004) to UAPA (amended 2008, 2019), with each iteration sharpening investigative and detention powers.
Article 22 of the Constitution permits preventive detention subject to procedural safeguards but does not override bail rights in ordinary criminal proceedings.
The principle "bail is the rule, jail is the exception" — derived from Code of Criminal Procedure (Section 437/439) — is significantly curtailed by Section 43D(5).
International human rights frameworks (ICCPR, Article 9) also guarantee presumption of innocence and the right to bail, raising tensions with stringent anti-terror bail bars.

Connection to this news: The larger bench reference is an opportunity for the Supreme Court to authoritatively calibrate where the balance lies — articulating a clear constitutional test for when Article 21 overrides the UAPA bail bar and on what conditions.

Key Facts & Data

UAPA first enacted: 1967; significantly amended: 2004, 2008, 2019
Section 43D(5): bail bar — bail denied if court finds prosecution's case prima facie true; applies to Chapter IV (unlawful activities) and Chapter VI (terrorist activities) offences
NIA v. Zahoor Ahmad Shah Watali: Supreme Court, 2019 — established the "prima facie" standard for UAPA bail; difficult to secure once chargesheet filed
Union of India v. K.A. Najeeb: Supreme Court, 2021 — Article 21 survives UAPA bail bar; bail possible after prolonged incarceration with no trial end in sight
Referring bench: two-judge bench, May 2026; interim bail granted to Tasleem Ahmed and Khalid Saifi (Delhi riots case) on 11 conditions for 6 months
Conflict identified: Syed Iftikhar Andrabi v. NIA bench vs. judgments in Gulfisha Fatima and Gurwinder Singh on scope of Najeeb
Article 145(3): Constitution Bench (minimum 5 judges) required for substantial constitutional questions
Prior anti-terror laws: TADA (1985–1995), POTA (2002–2004) — both had similar bail restrictions