Does the new SC judgment offer hope for bail under UAPA?

A comparison of two SC judgements on bail under UAPA: Watali, 2019, and Najeeb, 2021


The Supreme Court recently passed a judgment upholding Kerala High Court’s order granting bail to an accused charged under the stringent Unlawful Activities (Prevention) Act (UAPA). This judgment has set a new precedent for consideration of bail of persons charged under UAPA, the number of which has been on the rise since the 2019 amendment to the law. This time it is titled in the favour of the accused, albeit only for those who have spent considerable amount of time in jail without trial or pending trial.

In contrast, we have a 2019 judgment, also of the SC, (NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1) which is widely cited when denying bail to accused under the UAPA at any stage of the trial stating that the allegations against the accused are prima facie true. The Watali judgment is widely and blindly cited in several of these bail rejection orders. With the passing of the judgment in UOI vs. KA Najeeb, one more factor will have to be considered by courts when deciding bail of a UAPA accused.

We are juxtaposing both these judgements and precedents laid out by the same SC, and examining how a new avenue has been opened up in the niche jurisprudence of securing bail under special laws such as UAPA which have stringent restrictions against granting bail to accused.

Facts of both cases

In NIA vs. Zahoor Watali, the accused Watali was charged for acting as a conduit for transfer of funds received from a terrorist to secessionist leader and for helping them wage a war against the government. His bail was rejected by a Special NIA court which came to be reversed by Delhi High Court. The high court’s order was in appeal before the Supreme Court.

After going through the high court’s order, the Supreme Court bench comprising Justices AM Khanwilkar and Ajay Rastogi concluded that the analysis done by the high court in its order was perverse and amounted to conducting a mini trial at the stage of consideration of bail.

In UOI vs. KA Najeeb, the accused, Najeeb, in association with other members of the Popular Front of India (PFI), decided to avenge a purported act of blasphemy by one Professor TJ Joseph and attacked him by chopping off the palm of his hand. The accused was one of the main conspirators and was absconding at first but was arrested after another accused had been already convicted.

Between 2015 and 2019, he was denied bail 6 times, together by the special court and the high court, observing that prima facie he had prior knowledge of the offence, had assisted and facilitated the attack and so on. He was granted bail by Kerala High Court observing that the undertrial could not be kept in custody for too long when the trial was not likely to commence in the near future, for not doing so would cause serious prejudice and suffering to him. The Supreme Court bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose upheld the high court’s order granting bail.

‘Prima facie true’

In Watali, the apex court had delved in to the expression ‘prima facie true’ as part of section 43D (5) of the UAPA. The court held that ‘prima facie true’ would mean that the materials/evidence collated by the investigating agency must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, revealed the complicity of such accused. The court held that the degree of satisfaction for the court is required to be lighter in such cases.

In the Najeeb judgment, the Supreme Court has read down the ‘prima facie true’ argument partially. Firstly, because the factual matrix of the case is different from the Watali case, and also by comparing the provision to the one in the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

The court held that in Watali, bail was cancelled because the high court had gone beyond the statutory mandate of a prima facie assessment under Section 43D (5) and by that, could have prejudiced the trial.

Further, the court has, in Najeeb, compared the bail provisions of UAPA to the ones under NDPS and held that the provisions of the latter are more stringent and the ones under UAPA constitute merely “another possible ground” for rejecting bail. The court held thus,

Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under the UAPA. Instead, Section 43D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc

Thus, while in Watali, the court holds the expression ‘prima facie true’ to be of higher regard, in Najeeb the court has treated it as merely another possible ground to reject bail and has also called the UAPA bail provision to be “less stringent” compared to NDPS. In fact, the order states that it is affirming the bail order since UAPA provisions pertaining to bail are less stringent.

What is to be done at stage of bail

In Watali, the court held that at the stage of considering bail, under special Acts like the UAPA, the court is not expected to elaborately examine or dissect the evidence but to record a finding on the basis of broad probabilities regarding the involvement of the accused.

The court held that if the bail is being pleaded for after filing of chargesheet then it would be an arduous task for the accused to satisfy the court that despite the framing of charge, the materials presented along with the chargesheet, do not make out reasonable grounds for believing that the accusation against him is prima facie true. At this stage, the court cannot discard any material being placed before it as inadmissible in evidence but must only look at the contents and take it into account as it is.

In Najeeb, the court has highly relied upon, while affirming the high court’s view, the circumstance of the accused having spent considerable length of time in jail without trial. The court has sought to harmonize the restrictions under the statute and the court’s Constitutional Jurisdiction. The court has clearly mentioned that the restrictions on bail under the statute would “melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence”.

Section 43D (5) of UAPA

In Watali, the court has primarily focused on appreciation of material and chargesheet before the court only to satisfy itself that the allegations appear to be ‘prima facie true’ against the accused.

In Najeeb, however, the court’s approach has softened with respect to section 43D (5) of UAPA in light of the circumstances of the case whereby the accused’s incarceration exceeded a substantial part of the prescribed sentence. The court has vouched for this approach as it would “safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial”. The court has reiterated that “liberty” guaranteed under Part III of the Constitution would cover within its ambit access to justice and speedy trial.

In Watali, the court had implied that once chargesheet is filed, it would be difficult for the accused to convince the court that allegations against him/her are not ‘prima facie true’. In Najeeb, the court is open to consider bail during pendency of trial by taking into consideration factors such as impossibility of timely trial and incarceration for a significant period of time. The court has held thus,

Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.

In a stringent law such as the UAPA where granting or securing bail has become a rare exception, looking at the consistent denials in most UAPA cases, such a balanced approach taken by the Supreme Court could go a long way in carving out a new jurisprudence. While considering bail now, the courts will be compelled to juxtapose the bail provisions of UAPA with the circumstances of the case with respect to period of incarceration of the accused and how long will it take for the trial to begin and or be completed.

The NIA vs. Zahoor Watali judgment may be read here:

The UOI vs. KA Najeeb Judgment may be read here:



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