'Bail rule even in UAPA cases': Supreme Court expresses reservation on another top court bench declining relief to Umar Khalid, Sharjeel Imam

New Delhi: The Supreme Court on Monday said that bail should be the rule and jail the exception even in Unlawful Activities (Prevention) Act cases, while expressing reservations about a previous judgment delivered by another bench declining bail to activist Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case.

A bench of Justices B V Nagarathna and Ujjal Bhuyan emphasized at the legal principle in its judgment, granting bail to a J&K resident, Syed Iftikhar Andrabi, who has been in custody since June 2020 in connection with a narco‑terrorism case registered by the National Investigation Agency (NIA).

"It is clear beyond doubt that the preference for bail, or the often invoked principle ‘bail is the rule and jail is the exception’ flows from the constitutional primacy of personal liberty under Article 21 and, therefore, cannot be displaced by legislation," the bench said.

The bench said that bail should be the rule even in UAPA cases and the right to a speedy trial cannot be defeated merely because an accused has been booked under this stringent anti-terror law.

The court also noted the country-wide percentage of conviction under the UAP Act for the five years comprising the period 2019-23 hovers between 2% to 6%. In other words, there is 94% to 98% possibility of acquittal in such cases in the country.

The court underscored Section 43-D(5) remains subordinate to Article 21 at all times and a constitutional court need not hold back bail to the accused in the garb of Section 43-D(5).

"The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution," the bench said.

The court raised doubts over the decision in Gulfisha Fatima Vs State, which dealt with bail applications arising from the Delhi riots. While several accused were granted bail, a separate bench on January 5, 2026 declined to grant bail to activists Umar Khalid and Sharjeel Imam. The review plea was also rejected on April 16, 2026.

Justice Bhuyan, on behalf of the bench, said the court had serious reservations about the judgment in Gulfisha Fatima.

"We have serious reservations on various aspects of the judgment in Gulfisha Fatima, including foreclosing the right of the two appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that K A Najeeb (by three-judge) 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," Justice Bhuyan wrote.

The court pointed out the judgment in the case suggested Najeeb (a case law stating an accused cannot be jailed indefinitely) is only a narrow and exceptional departure from Section 43D(5), which was justified only in extreme factual situations.

No reading of Najeeb (2021) suggests that the mere passage of time, divorced from all surrounding circumstances, mechanically entitles an accused to release, the court clarified.

The bench made it clear that it has no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception.

"Najeeb 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 this court," the bench said.

The court, however, said in an appropriate case, bail can be denied having regard to the facts of that particular case.

The judgment came on the bail plea by Andrabi, a resident of Handwara in Kupwara, who was arrested by the NIA on June 11, 2020.