What did the Supreme Court say about bail under UAPA?

The Supreme Court reaffirmed that the principle "bail is the rule, jail is the exception" applies even in cases under the Unlawful Activities (Prevention) Ac...

What Happened

The Supreme Court reaffirmed that the principle "bail is the rule, jail is the exception" applies even in cases under the Unlawful Activities (Prevention) Act (UAPA), pushing back against a recent two-judge bench ruling that had denied bail to accused persons in the Delhi riots larger conspiracy case.
A larger bench questioned the January 2026 judgment in Gulfisha Fatima v. State, which had denied bail to accused persons, holding that the ruling had failed to properly follow the binding three-judge bench precedent established in Union of India v. K.A. Najeeb (2021).
The Court clarified that smaller benches cannot "dilute, circumvent, or disregard" judgments delivered by larger benches, and that the restrictions in Section 43D(5) of the UAPA must remain subordinate to the constitutional guarantee of personal liberty under Article 21.
The bench underscored that when there is no likelihood of trial being completed within a reasonable time and the accused has already undergone a substantial period of incarceration, the rigours of Section 43D(5) must yield to constitutional rights.

Static Topic Bridges

Section 43D(5) of the UAPA — The Bail Embargo

The Unlawful Activities (Prevention) Act, 1967, as amended in 2008 and 2019, is India's primary counter-terrorism and anti-secessionist legislation. Section 43D(5) creates a stringent bail restriction: a court cannot grant bail to an accused if, upon perusal of the case diary or report under Section 173 of the CrPC, there are "reasonable grounds to believe" that the accusations against the accused are prima facie true.

The standard under Section 43D(5) — "prima facie true" — is lighter than the "not guilty" standard under TADA or NDPS Act, but the bar is still significantly higher than ordinary bail jurisprudence under Sections 437 and 439 CrPC.
Courts are not to go into the merits and demerits of the case; they assess only whether the case diary discloses reasonable grounds to believe the accusation.
Under the NIA Act, 2008, all UAPA offences are exclusively triable by designated Special Courts; only these courts (and Sessions Courts exercising Special Court powers in their absence) have jurisdiction to grant or refuse bail.
The 2019 amendment to UAPA expanded powers to designate individuals (not just organisations) as terrorists, widening the pool of those subject to Section 43D(5).

Connection to this news: The dispute before the Court centres on how rigorously Section 43D(5) must be applied and whether a prolonged trial period can override the bail embargo — a question directly resolved by the K.A. Najeeb judgment.

Article 21 and the Right to Bail — Personal Liberty as a Fundamental Right

Article 21 of the Constitution guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. The Supreme Court has progressively interpreted this provision to include the right to a speedy trial, the right against prolonged incarceration without conviction, and the right to dignity.

Maneka Gandhi v. Union of India (1978): The Supreme Court held that "procedure established by law" under Article 21 must be fair, just, and reasonable — not arbitrary or oppressive — importing due process standards into Indian law.
Hussainara Khatoon v. State of Bihar (1979): The Court recognised the right to speedy trial as an implicit component of Article 21.
Union of India v. K.A. Najeeb (2021): A three-judge bench held that prolonged pre-trial incarceration can justify bail even in UAPA cases; the restrictions of Section 43D(5) are subordinate to the constitutional guarantee under Article 21.
Article 22 provides procedural safeguards upon arrest (right to be informed of grounds, right to consult a lawyer, production before magistrate within 24 hours), which complement Article 21 in the context of UAPA detentions.

Connection to this news: The Court's reaffirmation that Article 21 overrides Section 43D(5) when trial delays become constitutionally unconscionable is the central legal principle under examination.

The Doctrine of Stare Decisis and Bench Strength in India

Stare decisis — the obligation to follow precedent — is a foundational principle of common law jurisprudence. In the Indian Supreme Court, this operates through a rule that a bench of a lower number of judges cannot overrule or depart from a judgment of a larger bench; only a bench of equal or greater strength can do so.

Article 145(3) of the Constitution requires that cases involving a "substantial question of law as to the interpretation of the Constitution" must be decided by a bench of at least five judges (Constitution Bench).
A two-judge bench cannot depart from a three-judge bench ruling; a three-judge bench cannot overrule a five-judge bench. The hierarchy is strict.
The mechanism for resolving inter-bench conflicts is to refer the matter to a larger bench, not to simply decline to follow the earlier ruling.
In EPFO v. Sunil Kumar B. (2022), the Court reaffirmed that a coordinate bench has no jurisdiction to overrule or even express disagreement with a ruling of a larger bench without reference.

Connection to this news: The two-judge bench's failure in Gulfisha Fatima to follow the three-judge bench ruling in K.A. Najeeb represents a violation of this hierarchy, which is precisely what the larger bench has now corrected.

The NIA Act, 2008 — Institutional Architecture for Terrorism Trials

The National Investigation Agency Act, 2008 created a central agency for investigation of scheduled offences including UAPA offences, and established the architecture of Special Courts for trial of such cases.

The NIA Act designates Special Courts under Section 11; in their absence, the Sessions Court exercises these powers.
Bail provisions under the CrPC do not directly apply to UAPA cases tried under the NIA Act framework — the NIA Act is treated as a self-contained code.
The 2019 UAPA amendment inserted provisions (Sections 25, 35–36) allowing the government to designate individuals as terrorists and seize their property without a conviction.
The UAPA schedule lists 42 terrorist organisations; membership in or support for a listed organisation triggers the more stringent bail standard of Section 43D(5).

Connection to this news: Understanding the NIA Act framework is essential to appreciating why bail in UAPA cases is so difficult and why the Supreme Court's intervention to preserve Article 21 rights in prolonged-detention situations is constitutionally significant.

Key Facts & Data

Section 43D(5) of the UAPA: bail denied if court finds "reasonable grounds to believe" accusations are prima facie true based on case diary or Section 173 CrPC report.
Union of India v. K.A. Najeeb (2021) — three-judge bench held: prolonged incarceration justifies bail even under UAPA; Article 21 restrictions are superior to Section 43D(5) embargo.
The Gulfisha Fatima v. State (January 2026) judgment — two-judge bench — was criticised for not following K.A. Najeeb, a binding three-judge bench ruling.
The Court reiterated: a lower-strength bench cannot "dilute, circumvent or disregard" a higher-strength bench ruling.
All UAPA offences are exclusively triable by Special Courts under the NIA Act framework; only these courts can grant bail in such cases.
The NIA Act, 2008, enacted in response to the 26/11 Mumbai attacks, established a federal agency and Special Court system for terrorism-related offences.
UAPA was originally enacted in 1967; major amendments came in 2004, 2008, and 2019 expanding its scope significantly.