New Delhi: When a two-judge Supreme Court bench Monday criticised a co-ordinate bench’s decision denying bail in January to Sharjeel Imam and Umar Khalid, both accused under the Unlawful Activities (Prevention) Act (UAPA) in the Delhi riots case, the criticism raised a much broader issue: how should courts decide on bail under the anti-terror law?
Two verdicts lie at the heart of the debate: 2021 Union of India vs K.A. Najeeb, which held that prolonged incarceration without trial is grounds for bail even under the stringent UAPA; and the 2019 National Investigation Agency (NIA) vs Watali ruling, which restricted the scope of judicial scrutiny in matters of bail under the anti-terror law.
While granting bail to Kupwara resident Syed Iftikhar Andrabi, awaiting trial since June 2020 in a narco-terror case, justices B.V. Nagarathna and Ujjal Bhuyan said the January decision departed from principles laid down by a larger three-judge Supreme Court bench in the Najeeb judgment.
Essentially, the bench said the January order was a departure from the settled bail jurisprudence in UAPA cases that reinforced personal liberty as supreme and upheld bail as a rule and jail as an exception, even in terror-related cases, particularly those where trials were pending for an indefinite period.
A day later, a Delhi court Tuesday denied interim bail to the former Jawaharlal Nehru University (JNU) student activist Umar Khalid, holding that the grounds cited for relief were not reasonable. Khalid had sought 15 days’ interim bail to attend the 40th-day ceremony of his deceased uncle and to visit his mother, who is scheduled to undergo surgery.
On Tuesday, the Delhi Police said it would seek a review by a larger Supreme Court bench in light of “conflicting” rulings on UAPA bail standards, a decision that was an implicit recognition that the current UAPA bail jurisprudence is legally complex.
Larger benches are ordinarily constituted only when conflicting lines of precedent require authoritative resolution. The request, therefore, elevates what had seemed like a pattern of inconsistent bail adjudication into a formal institutional conflict within the Supreme Court’s UAPA jurisprudence.
These developments also put the spotlight on a broader issue bedevilling courts hearing UAPA bail cases. Under the UAPA, which sharply restricts the ability of courts to scrutinise evidence at the bail stage, judges have long struggled to balance national security concerns against constitutional guarantees of liberty and speedy trial.
Also Read: ‘Terror’ under UAPA not just conventional violence—what SC said in denying bail to Umar, Sharjeel
NIA vs Watali ruling & Union of India vs Najeeb
In the 2019 Watali case, a two-judge Supreme Court bench upheld the UAPA’s limits on judicial scrutiny when deciding on bail for Kashmiri businessman Zahoor Watali, who was accused of channeling funds to secessionist groups in Jammu & Kashmir.
“The exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required,” the court said.
“The totality of the material gathered by the investigating agency and presented along with the report and the case diary…must prevail until contradicted and overcome or disproved by other evidence,” it added.
This, and other aspects of the decision, have been interpreted as tilting the scales towards the prosecution when deciding UAPA bail matters.
The court had, in essence, laid out a simple test that permitted judges to take the prosecution’s claims at face value, without considering the admissibility or validity of the evidence. Rather than requiring the prosecution to at least minimally prove its case, the Watali ruling required the defence to disprove it, as is the legal requirement under UAPA.
Two years later, in 2021, a three-judge bench of the Supreme Court heard another UAPA bail case in Union of India vs K.A. Najeeb. The bench included Justice Surya Kant, now the Chief Justice of India, and another future Chief Justice, N.V. Ramana.
The verdict, authored by Justice Surya Kant, opened a door that had been slammed shut by Watali for those incarcerated under two stringent penal codes: the UAPA and the Prevention of Money Laundering Act (PMLA).
While granting bail to K.A. Najeeb, accused of attacking a professor in Kerala and imprisoned for five years without any prospect of an imminent trial, the ruling made clear that courts are allowed to consider a citizen’s right to a speedy trial even in cases under the two strict laws where provisions narrow down the scope to grant bail.
“The presence of statutory restrictions like Section 43D(5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution,” said the court.
Part III, which sets out the fundamental rights of citizens, includes Article 21, which says that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”
This has generally been interpreted by the Supreme Court to imply the right to a speedy trial and protection against indefinite imprisonment without one.
Section 43D(5) of the UAPA is the bail provision that lays down stringent tests for the courts to decide on bail applications, permitting courts to deny bail even if a prima facie offence is made out against the accused.
‘Ray of hope’
Experts ThePrint spoke to said the Najeeb case intentionally diluted the strictness of the Watali test. Legal scholar Gautam Bhatia called it a “ray of hope” for UAPA undertrials, but pointed out that Najeeb did not overturn Watali, which remains valid precedent to this day.
On the other hand, the Najeeb judgment was delivered by a larger bench than Watali. By the norms of judicial discipline, Najeeb should carry greater weight in deliberations.
But, the coexistence of the two verdicts left another question unresolved: how much weight should courts still give Watali, and whether a substantial submission of evidence by the prosecution could still overrule the Najeeb standard?
Advocate Namit Saxena said the coexistence of Watali and Najeeb has effectively made bail adjudication highly discretionary. “Once you have a judgment like Watali, to restore things to normalcy, it takes time,” Saxena told ThePrint. “Now there is another line of adjudication, so you can choose to follow either of these lines.”
The uncertainty was soon seen in judicial decisions.
When the Delhi High Court denied bail to Umar Khalid in 2022, a year after Najeeb, its decision relied heavily on Watali. The Supreme Court declined to intervene afterwards.
Some subsequent cases continued to rely on Watali.
In the the 2022 Jyoti Jagtap vs NIA case, the court did not consider Najeeb at all, implicitly arguing that Najeeb had no applicability even though the defendant had been in prison for two years by that point. It took another three years for Jagtap, arrested for her alleged ties to the organisers of the 2017 Elgar Parishad event, to secure bail.
Yet, other cases treated Najeeb as the main standard.
In the 2025 Hany Babu vs NIA case, the court cited Najeeb at length to grant Hany Babu bail, directly relying on Najeeb’s principle that even the stringent bail standards of UAPA will “melt down” through the years of incarceration without trial.
Babu, a former Delhi University professor and activist arrested for alleged ties to banned Maoist groups as part of the Bhima Koregaon prosecutions, had been in jail for five years.
Other courts would cite both cases, but treat the two different standards as equally valid and worthy of consideration.
In NIA vs Anand Teltumbde, the court cited both Watali and Najeeb, eventually upholding the Bombay High Court’s grant of bail primarily on the Watali standard but with some reference to Najeeb as well. Teltumbde, also arrested for his alleged connections to Bhima Koregaon, had been incarcerated for two years.
Shoma Kanti Sen vs State of Maharashtra also considered both cases, largely equally, in its decision to grant bail. One of the judges on that bench, Aniruddha Bose, was also on the Najeeb bench.
The grant of bail to Sen, a Nagpur University professor and activist arrested shortly after Bhima Koregaon, rested on both the scant evidence against her and the six years she had been imprisoned without trial.
Finally, a certain category of decisions began to treat Najeeb as narrow in scope and limited in application.
In 2024’s Union of India vs Barakathullah, the court observed that the defendants, alleged members of the banned Popular Front of India (PFI), “are in custody hardly for one and half years”, and decided they did not meet the Najeeb threshold.
In the same year, the Court in Gurwinder Singh vs State of Punjab rejected the appellant’s Najeeb-based argument, holding that “mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail”. Singh, allegedly involved with the Khalistan separatist movement, had been in jail for five years.
How long is too long?
These narrow readings of Najeeb raise a question: when is the Najeeb threshold met?
No bench of the Supreme Court has ever specified a number, leaving it to the discretion of the various benches.
An analysis of UAPA bail decisions in 2024 and 2025 by legal journalism outlet SC Observer showed that courts considered incarceration without trial of anywhere from two years to nine years to be grounds for bail, if it was granted at all.
It was this contradictory standard that the Supreme Court Monday indirectly called out.
In the 2023 Vernon Gonsalves case, the top court, while citing both Watali and Najeeb, ultimately relied on what it called “the fundamental proposition of law laid down in K.A. Najeeb” to grant bail to Gonsalves, yet another alleged Bhima Koregaon organiser who had been imprisoned for five years at that point.
In effect, the court read Najeeb asas a constitutional safety net layered over Watali in an attempt to reconcile the two judgments while still according precedence to the larger Najeeb bench.
In contrast, the January bench that rejected Khalid and Imam’s bail plea deployed an extremely narrow reading of Najeeb, claiming it only applies in “extreme” and “unconscionable” cases.
It read Najeeb and Gonsalves in a limited fashion, arguing that Najeeb “does not indicate as laying down a mechanical rule under which the mere passage of time becomes determinative”.
Nagarathna’s criticism made clear that such a narrow reading of two decisions by larger benches, in both Najeeb and Vernon Gonsalves, was a departure from the norms of bench discipline.
Her criticism also highlighted the deeper conflict in UAPA jurisprudence itself as both Watali and Najeeb continue to coexist.
Saxena argued that the uncertainty has had a deeper systemic effect on bail jurisprudence under the UAPA. “It acts contrary to the principle that jail is an exception and bail is a rule,” he said, describing the divergence between benches as “a very unfortunate trend”.
The consequence is that UAPA bail jurisprudence today remains marked by uncertainty.
The Supreme Court has repeatedly affirmed that constitutional courts retain the power to protect personal liberty even under stringent statutory regimes.
Yet, it has never clarified how that principle should operate alongside Watali’s standard, nor specified when incarceration without trial becomes constitutionally intolerable.
The conflict between the two cases may, however, soon come to an end.
Dilution of Najeeb
If a larger bench of the court is constituted to review the matter, it may finally be called upon to reconcile the tension between Watali and Najeeb, and lay down a clear, uniform standard for bail under the UAPA.
The escalation, however, brings its own perils.
Tanveer Ahmed Mir, a senior advocate who has personally argued and secured favourable rulings in UAPA bail hearings, believes that the escalation would be requested “so as to possibly have a hit at Najeeb”.
The government’s purpose, he told ThePrint, is to constitute a five-judge bench that would then have the weight to cast doubt on Najeeb’s relatively liberal standard.
According to him, an overturning of Najeeb would be a “travesty” that would substantially dilute Article 21 rights to a speedy trial.
For Mir, the danger in revisiting Najeeb lies in the possibility that constitutional protections could effectively be subordinated to statutory restrictions.
“The general interpretation of constitutional law is that everything the legislature does is subservient to the Constitution,” he said, arguing that any substantial dilution of Najeeb would weaken the judiciary’s ability to check prolonged incarceration without trial.
Mir also noted that while the bench review is in process, prosecutors could argue that bail should not be granted to UAPA suspects under Najeeb standards until a decision is reached. “They could ask, ‘Why give relief on the basis of Najeeb?’ when Najeeb might not last,” he said.
The stakes are not merely doctrinal. UAPA trials routinely stretch across years, with accused persons often spending years in custody before evidence is tested in court.
When the Supreme Court reconsiders the relationship between Watali and Najeeb, it may ultimately have to decide a larger constitutional question: whether Article 21 meaningfully limits preventive incarceration under anti-terror laws, or whether the statutory restrictions of the UAPA can override ordinary principles of liberty and bail.
Sahaj Sankaran is an alum of ThePrint School of Journalism, currently interning with ThePrint.
(Edited by Sugita Katyal)
Also Read: National security over liberty: How SC’s Umar-Sharjeel bail order runs counter to earlier rulings