Key Points

The Supreme Court on 18 May 2026 reaffirmed that “bail is the rule and jail is the exception” even in prosecutions under the Unlawful Activities (Prevention) Act (UAPA). Stressing that constitutional guarantees of liberty and speedy trial cannot be overridden by restrictions under anti-terror laws, the judgement questioned the court’s own January 2026 decision denying bail to activists Umar Khalid and Sharjeel Imam in the Delhi riots “larger conspiracy” case.

The observations came from a Bench of Justices BV Nagarathna and Ujjal Bhuyan while granting bail to Syed Iftikhar Andrabi, a resident of Jammu and Kashmir accused in a narco-terror case investigated by the National Investigation Agency (NIA). Andrabi had been in custody since 2020.

The NIA had alleged links with Pakistan-based terror operatives and cross-border narcotics smuggling networks associated with Lashkar-e-Taiba and Hizbul Mujahideen. However, the Supreme Court noted that the trial was moving slowly and hundreds of prosecution witnesses remained to be examined.

The court referred to National Crime Records Bureau (NCRB) data placed before Parliament, noting low conviction rates under the UAPA across India between 2019 and 2023. According to the judgment, conviction rates nationally ranged between 2% and 6%, while in Jammu and Kashmir they remained below 1%.

“With these kinds of statistics staring at our face, the question is, should we continue the detention of the appellant or defer the consideration to a later stage, simply because the charges are serious,” the Bench asked while granting bail to Andrabi subject to conditions set by the NIA court.

‘Bail is the Rule, Even Under UAPA’

“The often-invoked phrase bail is the rule and jail is the exception is not merely an empty statutory slogan flowing from the CrPC,” Justice Bhuyan observed. “It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence, which is the cornerstone of any civilised society governed by the rule of law.”

The Bench said that while laws such as the UAPA may impose stricter standards in cases involving terrorism or national security, they cannot “invert the constitutional relationship between liberty and detention”.

The judgment focused extensively on Section 43-D(5) of the UAPA, which places severe restrictions on granting bail if the accusations appear “prima facie” true. The court warned that such a standard, if mechanically applied, could turn pre-trial detention into punishment.

See Also: International Scrutiny Grows as US Lawmakers Write to India Over Umar Khalid’s Five-Year Detention Under UAPA Without Trial

“The State needs only to satisfy a low prima facie threshold while the trial may continue for years, with the result that pre-trial incarceration begins to acquire a post-trial punitive character,” the Bench said.

The court added that constitutional courts could intervene and grant bail despite the statutory embargo if prolonged incarceration violated fundamental rights. “Section 43-D(5) remains subordinate to Article 21 at all times,” the judgment stated. “A constitutional court need not hold back bail to the accused in the garb of Section 43-D(5).”

The Bench relied heavily on the Supreme Court’s 2021 ruling in Union of India v KA Najeeb, where a three-judge Bench had held that long incarceration and delayed trials could justify bail even under the UAPA. According to the court, that judgment remains binding precedent and “cannot be diluted, circumvented, or disregarded by the trial court, the High Court, or even by benches of lower strength of this court.”

“A judgment rendered by a bench of lesser strength is bound by the law declared by a bench of greater strength,” the court added.

Criticism of SC Judgement Denying Bail to Khalid and Imam

The judges also criticised later two-judge Bench rulings, including the January 2026 decision in the Delhi riots conspiracy case involving Khalid and Imam, for departing from the reasoning in Najeeb.

“We have serious reservations on various aspects of the judgment in the Gulfisha Fatima case, including foreclosing the right of the two appellants to seek bail for a period of one year,” the court observed, saying this violated the right to liberty.

“It is this hollowing out of the import of the observations in the Najeeb case that we are concerned with,” the court said, arguing that the January 2026 ruling appeared to reduce the judgement to a narrow exception instead of recognising it as a constitutional safeguard.

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