Supreme Court Casts Doubt on Its Own UAPA Bail Ruling

Synopsis

On 18th May 2026, a bench of Justices B.V. Nagarathna and Ujjal Bhuyan of the Supreme Court, in its January 2026 verdict in the Delhi riots conspiracy case under the UAPA, which denied bail to former JNU scholars Umar Khalid and Sharjeel Imam who have been jailed for more than five years, showed keen interest and reservations. The bench reiterated that bail is a constitutional prerequisite, stated that smaller benches are not allowed to run contrary to binding precedent set by the bigger ones and faulted the two-prong test used in the earlier judgment.

A Special NIA Court had in August 2024 denied bail to Syed Iftikhar Andrabi, a resident of Tangdhar belt in Jammu and Kashmir. He had been in custody for almost five years without a trial, but the Jammu and Kashmir and Ladakh High Court rejected his application again a year later on paper. Andrabi ultimately went all the way to the Supreme Court after being charged under the Unlawful Activities (Prevention) Act (UAPA) for allegedly funneling funds that were paid for the procurement of heroin from the Tangdhar border to terrorist organizations. While considering his case, a bench of Justices B.V. Nagarathna and Ujjal Bhuyan struck a different kind of judicial inquiry — one that has been the subject of sharp criticism of the court's January 2026 bail denial order against Jawaharlal Nehru University scholars Umar Khalid and Sharjeel Imam.

A Bench Questions Its Own Court

Justices Nagarathna and Bhuyan, granting the bail to Andrabi, expressed 'serious reservations' on the January 2026 judgment passed by a co-ordinated bench comprising Justices Aravind Kumar and N.V. Anjaria in the case of Gulfisha Fatima v. State. That judgment, which had denied bail to Khalid and Imam in the case of 'larger conspiracy' behind the communal violence in the Northeast Delhi that erupted in February 2020, had granted bail to their five co-accused, including Meeran Haider, Shifa-ur-Rehman, Mohd Saleem Khan, Shadab Ahmed, and Gulfisha Fatima, in the same batch of appeals.

The January bench had earlier established that Khalid and Imam were on a 'qualitatively different footing' from the other accused of the case, pointing to a prima facie finding of a 'central and formative role' for the two men in the alleged conspiracy. It had concluded that the five-plus years that it had spent detained without a verdict had not yet reached the "constitutional impermissibility" point.

The Binding Precedent: Union of India v. K.A. Najeeb

The cornerstone of the criticism in May 18 is the judgment in the Union of India v. K.A. Najeeb case, which categorically held that, “an extended period of incarceration alone could be an adequate ground for granting bail in this case, even in the absence of any restriction under Section 43D(5) of the Act”.

Section 43D(5) is the provision which bars a court to grant bail to a person in an UAPA case if on the reading of the case diary or the charge sheet, the court has the reasonable belief that the accusation is prima facie correct. The K.A. Najeeb judgment had provided an exception: If a trial is unduly delayed due to no fault of the accused mainly due to the delay on his side, then the fundamental rights guaranteed by Article 21 and Article 19 of the Constitution will take precedence over this statutory bar.

In the case of Fatima, however, the bench, comprising Justices Nagarathna and Bhuyan, on May 18, also relied on an earlier judgement in the Gurwinder Singh case and gave the 'two-prong' test. This test called on the accused to prove the absence of any prima facie case, before any question of delay in trial could arise for granting bail.

The Two Prong Test and the constitutional risk

In the clear terms of Justice Bhuyan's observations made on 18th May, the danger of this kind of test is laid bare. If the accused has to meet the prima facie requirement first, then the State has a relatively simple way of keeping the person detained for years: by establishing the prima facie case on the threshold — set low in accordance with the principle of the maximization of investigative scope — and allowing the trial to proceed without any meaningful progress.

The bench did not find support either in the text of the UAPA or in K.A. Najeeb precedent for this test. It restated the principle of judicial hierarchy, one that is fundamental and says that a judgment delivered by a weaker bench is subject to the superior bench's verdict. The ratio of a larger bench cannot be diluted, circumvented, or ignored by a smaller bench. Justice Bhuyan stated that the only permissible way is to reference a still bigger bench even if doubts are raised as to the correctness of a larger bench decision.

Five Years Without a Verdict

Umar Khalid, a doctoral researcher at JNU, arrested under the UAPA in September 2020 and Sharjeel Imam, who was arrested in January 2020 on the basis of the UAPA, are among those accused in the ‘larger conspiracy' behind the communal violence that erupted in Northeast Delhi in February 2020, as Delhi Police alleged. A day of violence left 53 people dead and more than 700 injured, according to the official records, in the protests against the Citizenship Amendment Act.

Both of them had appealed against an order of September 2025 by the Delhi High Court which had refused them bail. After listening to arguments for 11 days in December 2025, the Supreme Court handed down its verdict on January 5, 2026. In January, the bench agreed that both men had suffered from 'substantial periods of incarceration' but that it had not been long enough to reach the stage of constitutional impermissibility.

Liberty was granted to both to renew their applications after the examination of protected witnesses, or after one year from the January order, whichever came first. A statute under sustained scrutiny is the UAPA. The UAPA is a statute under sustained scrutiny.

The Unlawful Activities (Prevention) Act was enacted in 1967, and was amended substantially in 2008 and 2019, and has been the subject of sustained constitutional debate in India. The 2019 changes now made the definition of 'terrorist' apply to people and not only to organisations, and further restricted the grounds for seeking bail. The length of police custody periods, complex trial procedures and Section 43D(5) of the PODA have resulted in a case of accused persons spending years in pre-trial custody in cases of UAPA.

Though, as per data compiled by the National Crime Records Bureau (NCRB), a significant proportion of UAPA cases have been pending since the last few years even though the number of persons in custody under the Act has increased. Legal experts have pointed out that the time lag between arrest and completion of trials under the UAPA cases is sometimes in years, not months.

What Comes Next

The bench's May 18 observations, however, are technically 'obiter dicta' — statements that it made during the deciding of another case and are not binding precedent in the Khalid-Imam cases. But their legal significance is significant – they cause judicial record a critique of the named judgment of the named Supreme Court, of sitting judges of the same Supreme Court. These observations, if made by any party in a formal challenge to the judgment of Gulfisha Fatima, result in the procedurally indicated response of a reference to a three judge bench or more.

In Khalid's and Imam's case the order entered in January 2026 would continue to be in effect until that is done. The two men still have the right to renew their bail applications when the one-year timeframe set by the bench in January will begin, which is at the latest in early 2027. It remains to be seen whether Monday's rulings speed up or change that timeframe.

In the interim, the court's assertion that ‘the concept of bail is a constitutional principle, that is, flowing from Article 21' has triggered a discussion that extends beyond the confines of these two scholars, much more to every citizen of India who is in custody because of the UAPA, awaiting a trial that hasn't yet been completed.