Supreme Court: While considering this matter revolving around interface between Section 43-D(5), Unlawful Activities (Prevention) Act, 1967 (UAPA) and the constitutional guarantee of personal liberty under Article 21 of the Constitution and the propriety of smaller Benches hollowing out constitutional force of a larger Bench decision without expressly disagreeing with it; the Division Bench of B.V. Nagarathna and Ujjal Bhuyan*, JJ., expressed serious reservations on several aspects of the judgment rendered by a co-equal Bench in Gulfisha Fatima v. State (NCT of Delhi), 2026 SCC OnLine SC 10.
The Court clarified that the often-invoked principle “bail is the rule and jail is the exception” flows from the constitutional primacy of personal liberty under Article 21 of the Constitution and, therefore, cannot be displaced by legislation. The Court further clarified that three-Judge Bench decision in Union of India v. K.A. Najeeb, (2021) 3 SCC 713 is binding law entitled to the protection of stare decisis. It cannot be diluted, circumvented, or disregarded by trial courts, High Courts or even by Benches of lower strength of Supreme Court. It was reiterated that K.A. Najeeb was not warning courts against treating incarceration as the sole factor favouring bail. Instead, it was warning against treating the statutory embargo as the sole factor justifying continued detention by ignoring constitutional principles. Therefore, the subsequent reading that K.A. Najeeb does not create an automatic entitlement to bail on account of delay answers a proposition that Najeeb itself never advanced.
Background
The appellant was a government employee in the Rural Development Department, serving at Kupwara. He was taken into preventive detention on 7 August 2019 under the Jammu & Kashmir Public Safety Act, 1978, after abrogation of Article 370 of the Constitution.
In the dossier and the grounds of detention, it was mentioned that the appellant was also a political activist associated with People’s Conference with close connection to the people. It was further stated in the dossier that his preventive detention was recommended by the Superintendent of Police, Handwara, to ensure that there was no law-and-order problem in view of the fragile law and order situation following abrogation of Article 370.
The appellant challenged his detention before Jammu & Kashmir and Ladakh High Court; his case was heard and judgment was reserved. Meanwhile the appellant’s detention was revoked in April 2020 and he was released from custody. The High Court also delivered its verdict on 26 June 2020 quashing the detention order.
An FIR was lodged by the police at Handwara Police Station on 11 June 2020 under Sections 8 and 21, Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellant was arrested again. Thereafter, on 22 June 2020, the Central Government directed the National Investigation Agency (NIA) to take charge of the case. In the charge-sheet filed by NIA, it was stated that cash and drugs were recovered from him and the phone numbers appearing in his mobile phones establish his linkage with Pakistan based terrorist groups. Thus, the appellant was accused of committing offences under Sections 17, 38 and 40 UAPA read with Sections 8, 21, 25 and 29, NDPS Act read with Section 120-B, Penal Code, 1860 (IPC).
The appellant’s regular bail application was rejected by third Additional Sessions Judge, Jammu designated as the Special NIA Court in August 2024. Subsequently, Jammu & Kashmir and Ladakh High Court, vide the impugned judgment dated 19 August 2025, upheld the aforesaid bail rejection, which was thereafter challenged before the Supreme Court in this present appeal.
Court’s Assessment
Perusing the matter, the Court deliberated over the statutory provisions under which the appellant was charged and relevant case laws having bearing on the present case.
Examining Section 43-D(5) UAPA, the Court stated that provision engrafts a restriction on the ordinary power of courts to grant bail in cases involving offences under Chapters IV and VI of the UAPA, which concern mainly terrorist activities and membership or support of terrorist organisations. The section begins with a non obstante clause overriding the ordinary bail framework under the Criminal Procedure Code (CrPC) and mandates that no accused person in custody shall be released on bail without first affording the Public Prosecutor an opportunity of being heard. The proviso to the section imposes a further limitation; it states that bail shall not be granted if, upon a perusal of the case diary or the police report submitted under Section 173 CrPC, the court is of the opinion that there exist reasonable grounds for believing that the accusation against the accused is prima facie true.
The Court relied on K.A. Najeeb wherein three-Judge Bench of the Supreme Court had stated that liberty granted by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and speedy trial. Undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the court would ordinarily be obligated to enlarge them on bail.
While analysing the case laws dealing with the issues related bail under UAPA, the Court specifically emphasised on 2 cases, namely, Gurwinder Singh v. State of Punjab, (2024) 5 SCC 403 and Gulfisha Fatima v. State (NCT of Delhi), 2026 SCC OnLine SC 10. It was pointed out that these cases took somewhat divergent view from the clear distinctive trajectory taken by the Court qua grant of bail even under special enactments like TADA, UAPA and NDPS Act.
In Gurwinder the Division Bench of the Court had held that Section 43-D(5) UAPA creates a standalone and rigorous limitation upon the ordinary power of courts to grant bail and observed that, unlike the conventional approach under criminal law where “bail is the rule and jail the exception”, the legislative intent underlying the UAPA was the reverse, namely, that “bail must be rejected as a rule”, and that the courts must give full effect thereto. This decision formulated a “two-pronged test” of bail under UAPA. Interpreting K.A. Najeeb, the Court had observed that the decision could not be read as mandating bail solely on account of prolonged incarceration.
In Gulfisha the Division Bench of the Court observed that the constitutional promise under Article 21 of the Constitution is not that liberty will be unregulated, but that deprivation of liberty will not be arbitrary, unconscionable or unfair. Therein the Court held that K.A. Najeeb must be understood as a principled safeguard against unconscionable detention. Though prolonged incarceration is a matter of serious constitutional concern and carries great weight, it is not, however, the sole determinant. The court must consider in totality whether continued detention has become constitutionally unjustifiable, having regard to the role attributed, the statutory context, the limited prima facie material, the trajectory of the trial, the causes of delay and the availability of intermediate remedies. The Bench had further held that to read K.A. Najeeb as mandating bail solely on account of prolonged incarceration, irrespective of the statutory context or the nature of the allegations, would be to attribute to the decision a consequence it neither intended nor supports. Therefore, K.A. Najeeb cannot be used as a mathematical formula of universal application.
Reservations Expressed and Precedential Force of K.A. Najeeb case
Taking note of the divergent approach taken in the aforesaid Division Bench decision vis-a-vis a three-Judge Bench ruling, the Court expressed serious reservations on various aspects of the judgment in Gulfisha Fatima, including foreclosing the right of the two accused persons therein, to seek bail for a period of 1 year. “The judgment in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5) justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with.”
The Court explained that no reading of K.A. Najeeb suggests that the mere passage of time, divorced from all surrounding circumstances, mechanically entitles an accused to release. Therein the Court was concerned over the manner in which Section 43-D(5) was, in practice, being deployed as an almost conclusive basis for denial of bail notwithstanding extraordinary delay in trial and prolonged incarceration. “It is precisely for that reason that this Court observed that the ‘rigours’ of Section 43-D(5) would ‘melt down’ where there is no likelihood of the trial being completed within a reasonable time and where the period of incarceration undergone has already exceeded a substantial part of the prescribed sentence.”
In K.A. Najeeb, the Court was clear and unequivocal in holding that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge the accused on bail.
Expressing doubts over reasonings given in Gurwinder and Gulfisha the Court stated that the emphasis in K.A. Najeeb was constitutional in nature. It was directed towards preventing Section 43-D(5) from overpowering Article 21 considerations in cases of gross delay and prolonged incarceration. The constitutional force of K.A. Najeeb lies in its restoration of the hierarchy between the UAPA, and the Constitution. Section 43-D(5) UAPA remains subordinate to Article 21 of the Constitution at all times and a Constitutional Court need not hold back bail to the accused in the garb of Section 43-D(5).
The often-invoked phrase “bail is the rule and jail is the exception” is not merely an empty statutory slogan flowing from the CrPC as Gurwinder has stated. 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. Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAPA is meant, but those cannot altogether invert the constitutional relationship between liberty and detention. The statutory embargo of Section 43-D(5) UAPA must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution.
As to Gurwinder, the Court stated that it is difficult to be followed as precedent as it refuses to be bound by the precedent in K.A. Najeeb.
Judicial Discipline
“It is plain that a judgment rendered by a Bench of lesser strength is bound by the law declared by a Bench of greater strength. Judicial discipline mandates that such binding precedent must either be followed or, in case of doubt, be referred to a larger Bench. A smaller Bench cannot dilute, circumvent, or disregard the ratio of a larger Bench.”
Given the divergent views in Division Bench decisions of Gurwinder and Gulfisha, the Court pointed out that K.A. Najeeb was a three-Judge Bench decision. It was further pointed out that the Division Benches in Gurwinder and Gulfisha, made a clear departure from the ratio laid down in K.A. Najeeb. The Court explained that judicial discipline and certainty demands that Benches of smaller strength are mindful of the decisions rendered by larger Benches and are bound to follow the same. If the smaller Benches are unable to agree with the ratio laid down by the larger Bench then the proper and the only course of action open is to make a reference to the Chief Justice of India for placing the matter for consideration by a still larger Bench. “Being in a combination of two Judges, we are bound by the ratio laid down by the three-Judge Bench in K.A. Najeeb. We say this and no more.”
Decision and Concluding Remarks
With the aforementioned assessment and clarifications, the Court pointed out that the core allegation against the appellant was that he was involved in narco-terrorism activities, which was strongly refuted by him.
Perusing the facts of the case, the Court stated that the charge of terror cannot stand independent of the charge under the NDPS Act. When there is no evidence of sale or purchase of narcotics nor is there any admissible evidence of recovery of narcotics or funds from the appellant, not having found the appellant in conscious possession of any narcotic; the whole premise of terror funding charges against the appellant under the UAPA collapses.
The Court explained that at the stage of considering the prayer for appellant’s bail, it is neither desirable nor permissible to analyse and consider the merits of the accusations made against the appellant. The prosecution will have to prove its case against the appellant beyond all reasonable doubt in the trial.
The Court upon due consideration, opined that appellant has made out a case for grant of bail during pendency of the trial.
Therefore, the Court directed that the appellant should be released on bail on such terms and conditions as the Special NIA Court may deem fit and proper.
While concluding the judgment, Ujjal Bhuyan, J., acknowledged the invaluable inputs of B.V. Nagarathna, J., and once again emphasised the requirement of reiterating and clarifying the legal position following K.A. Najeeb lest there be any confusion in this regard.
[Syed Iftikhar Andrabi v. NIA, 2026 SCC OnLine SC 881, decided on 18-5-2026]
*Judgment by Justice Ujjal Bhuyan
Advocates who appeared in this case:
For Petitioner(s): Mr. Shadan Farasat, Sr. Adv. Mr. Talha Abdul Rahman, AOR Mr. Umair Andrabi, Adv. Ms. Tanisha, Adv. Mr. Naseer H. Jafri, Adv. Mr. Dilwar H. Barlaskar, Adv. Mr. Uzair, Adv. Mr. Sudhanshu Tewari, Adv. Mr. Deepesh Kasana, Adv. Mr. Faizan Ahmed, Adv. Mr. M Shaz Khan, Adv.
For Respondent(s): Mr. S.D. Sanjay, A.S.G. Mr. Akshat Agarwal, Adv. Ms. Mili Baxi, Adv. Mr. Aman Jha, Adv. Mr. Anuj Sriniva Udupa, Adv. Mr. Arvind Kumar Sharma, AOR
