Supreme Court Refers Question Of Bail Under UAPA vs Article 21 To Larger Bench; Grants Interim Bail To Accused Due To Prolonged Incarceration

"Question, therefore, is not whether Article 21 survives Section 43D(5). It undoubtedly does. The true question is how Article 21 is to be applied in a statutory field where Parliament has consciously imposed restrictions on bail in respect of offences alleged to affect the security of the State and the stability of civic life," Supreme Court, in a significant order, has referred the complex legal intersection of statutory bail restrictions under the Unlawful Activities (Prevention) Act (UAPA) and the fundamental right to liberty under Article 21 to a larger bench.

A bench comprising Justice Aravind Kumar and Justice Prasanna B. Varale observed that there is a perceived divergence in how different benches of the Court are interpreting the landmark three-judge bench decision in Union of India v. K.A. Najeeb. While referring the matter to the Chief Justice of India for the constitution of an appropriate bench, the Court granted interim bail for six months to the appellants, citing their substantial period of incarceration.

The case arose from criminal appeals filed by Tasleem Ahmed and others who are facing prosecution under the UAPA and have been in custody for a significant duration. The appellants sought bail on the grounds of prolonged incarceration and the unlikelihood of the trial concluding in the near future, citing the constitutional protections afforded by Article 21 of the Constitution of India. The State, represented by the Additional Solicitor General, argued that recent coordinate bench decisions had created conflicting interpretations of the statutory bar on bail contained in Section 43D(5) of the UAPA.

The primary question before the court was the proper constitutional approach to be adopted when prolonged incarceration and trial delays are pressed as grounds for bail despite the statutory restraints in Section 43D(5) of the UAPA. The court was also called upon to resolve whether a coordinate bench can effectively unsettle the ratio of an earlier coordinate bench's decision through "strong observations" without a formal reference to a larger bench.

Binding Nature Of K.A. Najeeb Ruling

The Court began by reaffirming that the decision in Union of India v. K.A. Najeeb remains an authoritative pronouncement by a three-judge bench which preserves the constitutional force of Article 21. The bench noted that K.A. Najeeb held that statutory restrictions like Section 43D(5) do not per se oust the power of constitutional courts to grant bail where continued detention violates Part III of the Constitution.

No Mechanical Application Of Delay For Bail

The Court examined the decision in Gulfisha Fatima v. State, noting that it correctly understood K.A. Najeeb not as a "mathematical command" for bail based on time alone, but as a principled safeguard. The bench observed that the inquiry into delay must be contextual, taking into account the nature of allegations, the trajectory of the trial, and the role attributed to the accused.

"The ratio of K.A. Najeeb (supra), therefore, is neither a charter for indefinite incarceration under the cover of Section 43D(5), nor a mathematical command that the mere passage of time, divorced from all surrounding circumstances, must automatically result in bail."

Conflict Between Coordinate Benches

The bench took judicial notice of a later decision in Syed Iftikhar Andrabi v. NIA, where another coordinate bench expressed "serious reservations" regarding the reasoning in Gulfisha Fatima. The later bench had suggested that Gulfisha Fatima adopted a narrower reading of K.A. Najeeb, potentially hollowing out its constitutional force. The Court noted that such disagreements between benches of equal strength create legal uncertainty.

Discipline Of Precedent Requires Reference To Larger Bench

Emphasizing judicial discipline, the Court held that a coordinate bench cannot effectively unsettle the ratio of an earlier bench of equal strength through critical observations. The bench stated that if an earlier view is thought to be inconsistent with a larger bench decision, the only proper course is a reference to the Chief Justice of India.

"A coordinate Bench cannot, by strong observations, effectively unsettle the ratio of an earlier coordinate Bench while continuing to sit in equal strength. If the earlier view is thought to be inconsistent with a larger Bench decision, the proper course is reference."

Interplay Between UAPA Restrictions And Article 21

The Court clarified that the controversy raises a broader question of how constitutional courts should approach bail where prolonged incarceration is asserted in prosecutions governed by special statutes. The bench remarked that neither the extreme of "lapse of time compels bail in every case" nor "unqualified insistence on Section 43D(5) regardless of delay" is commanded by the Constitution.

Grant Of Interim Bail Pending Reference

Despite the legal reference, the Court held that the appellants should not suffer continued incarceration while the important question of law is being settled. Noting that the trial was not likely to conclude immediately and that the appellants had already undergone substantial incarceration, the Court inclined towards granting interim relief.

"The appellants cannot be made to suffer continued incarceration merely because an important question of law has arisen for authoritative settlement. Without expressing any opinion on merits, and subject to stringent safeguards, we are inclined to grant interim bail."

Strict Conditions For Interim Release

The Court directed the release of the appellants on interim bail for a period of six months subject to furnishing a personal bond of Rs. 2,00,000 with two local sureties. Other conditions include surrendering passports, not leaving the NCT of Delhi without permission, reporting to the Investigating Officer fortnightly, and refraining from making public statements regarding the merits of the case.

The Supreme Court concluded that the intersection of Article 21, prolonged incarceration, and statutory restrictions under the UAPA requires an authoritative resolution to ensure clarity and consistency across the country. By referring the matter to the Chief Justice, the Court sought to settle the "correct approach" for constitutional courts dealing with bail under special statutes. The Registry was directed to place the papers before the CJI for the constitution of an appropriate bench, while the appellants were granted interim liberty in the interim.

Date of Decision: 22 May 2026