The Supreme Court of India on May 22 referred to a larger Bench questions relating to the interpretation of the three-judge bench ruling in Union of India v. K.A. Najeeb, which had held that prolonged incarceration and delay in trial can justify grant of bail even in the Unlawful Activities (Prevention) Act, 1967 cases despite statutory restrictions. At the same time, a Bench of Justice Aravind Kumar and Justice Prasanna B. Varale granted interim bail for six months to Delhi riots accused Tasleem Ahmed and Khalid Saifi in the larger conspiracy case arising from FIR 59/2020.
The Bench observed that a “perceived divergence” had emerged among different benches of the Supreme Court regarding how K.A. Najeeb ought to be understood in cases involving prolonged incarceration under anti-terror legislation.
The order assumes enormous significance because it directly engages with the growing judicial disagreement over the scope of constitutional courts’ powers to grant bail in UAPA prosecutions despite the restrictive mandate of Section 43D(5), which severely curtails bail where accusations appear prima facie true.
The reference arises in the aftermath of the recent judgment in Syed Iftikhar Andrabi v. National Investigation Agency delivered by a Bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan. That judgment had strongly questioned the correctness of the January 2026 ruling in Gulfisha Fatima v. State (Govt. of NCT of Delhi), authored by Justice Aravind Kumar, insofar as it denied bail to Umar Khalid and Sharjeel Imam in the Delhi riots conspiracy case.
Detailed piece on Andrabi judgment may be read here and here.
Detailed piece on Gulfisha judgement may be read here.
The Andrabi Bench had observed that Gulfisha Fatima and Gurwinder Singh v. State of Punjab appeared to have adopted an unduly narrow understanding of K.A. Najeeb, which had recognised that prolonged incarceration and the improbability of an early conclusion of trial could justify grant of bail even under stringent anti-terror statutes.
The constitutional question before the court
The present Bench framed the issue as one going beyond the individual bail claims of Tasleem Ahmed and Khalid Saifi. According to the Court, the controversy concerns the “proper constitutional approach” to cases where prolonged incarceration and delay in trial are invoked as grounds for bail despite statutory restrictions under Section 43D (5).
The Bench emphasised that K.A. Najeeb remains an “authoritative pronouncement” of a three-judge bench and preserves “the constitutional force of Article 21” while simultaneously recognising the legislative policy underlying special statutes like the UAPA.
The Court carefully reiterated the essence of K.A. Najeeb: constitutional courts retain the power to grant bail where continued incarceration violates fundamental rights, even in the presence of statutory embargoes. However, the Court stressed that K.A. Najeeb did not establish an automatic or mechanical rule that passage of time alone mandates bail.
In one of the most important observations in the order, the Bench stated:
“The ratio of K.A. Najeeb, 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.” (Para 8)
This formulation is likely to become central to future UAPA litigation because it seeks to position the Court between two competing extremes: absolute deference to statutory restrictions on the one hand, and automatic constitutional override solely on the basis of delay on the other.
Court defends Gulfisha Fatima against criticism in Andrabi
A substantial portion of the order is devoted to defending the reasoning adopted in Gulfisha Fatima, which had granted bail to five Delhi riots accused while denying relief to Umar Khalid and Sharjeel Imam.
The Bench observed that Gulfisha Fatima had expressly recognised K.A. Najeeb as a constitutional safeguard against “unconscionable detention” and had not treated Article 21 as subordinate to Section 43D(5).
The Court reproduced lengthy extracts from Gulfisha Fatima, particularly paragraphs 32, 52 and 53, where the earlier judgment had held that prolonged incarceration is a matter of “serious constitutional concern” but cannot be treated as the “sole determinant” for bail.
The Bench emphasised that Gulfisha Fatima rejected only a “mechanical or solitary application of delay.” Instead, it required courts to undertake a contextual inquiry considering:
- the nature of allegations,
- the role attributed to the accused,
- the stage and trajectory of trial,
- causes contributing to delay,
- prima facie material,
- risks to trial integrity,
- public order concerns,
- and the possibility of witness intimidation.
Importantly, the Court underscored that in Gulfisha Fatima, bail had actually been granted to five out of seven accused persons. Bail was denied to Umar Khalid and Sharjeel Imam only after an “accused-specific evaluation” of their roles and the material against them.
The Bench further pointed out that even while denying bail to Khalid and Imam, liberty had been reserved to renew their pleas after examination of protected witnesses or after one year. This itself, the Court said, demonstrated that Article 21 remained a “continuing constitutional check” and was not excluded from consideration.
In another notable observation, the Court remarked that the present petitioners themselves had relied upon Gulfisha Fatima to seek bail. This, according to the Bench, demonstrated that the judgment could not be understood as one completely subordinating Article 21 to Section 43D(5).
Sharp observations on judicial discipline and coordinate benches
Perhaps the most institutionally significant aspect of the order lies in its observations on judicial discipline and the functioning of coordinate benches.
Without directly criticising the Andrabi judgment, the Bench made clear that a coordinate bench cannot effectively unsettle another coordinate bench merely through strong observations while continuing to sit with equal strength.
The Court observed:
“Judgments of this Court are not to be answered by counter-observations from another Bench of equal strength. The discipline of precedent demands a higher institutional method.” (Para 15)
The Bench stressed that if a coordinate bench entertains reservations about the reasoning of an earlier bench, especially regarding application of a binding larger bench judgment, the proper course is to refer the issue to the Chief Justice of India for constitution of an appropriate larger bench.
In language that appeared to respond directly to the criticism in Andrabi, the Court stated:
“A coordinate Bench may distinguish an earlier decision, may explain its own understanding of the law, and may, in an appropriate case, express doubt. But where the doubt goes to the root of the legal principle applied, the matter cannot be left at the stage of criticism. A doubt expressed in emphatic terms is still a doubt; it is not a declaration of law. Unless resolved by a Bench of appropriate strength, it only introduces uncertainty in the administration of justice.” (Para 17)
The Bench warned that unresolved disagreements between coordinate benches create “uncertainty in the administration of justice” — particularly in matters concerning personal liberty, national security, and anti-terror prosecutions.
Court rejects both extremes in UAPA bail jurisprudence
The order repeatedly attempts to strike a constitutional middle path. On one side, the Court cautioned against an “unqualified reading” that lapse of time alone must compel bail in every UAPA prosecution. According to the Bench, such an approach could prevent courts from considering critical factors such as:
- centrality of the accused’s role,
- protected witnesses,
- risks of intimidation,
- possibility of reactivation of networks,
- public order implications,
- national security concerns,
- and whether delays are attributable to the accused themselves.
At the same time, the Court also rejected an absolute application of Section 43D(5), observing that ignoring prolonged incarceration altogether would “imperil Article 21.” The Bench distilled the controversy into what may become the central constitutional question before the larger bench:
“The 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.” (Para 21)
Matter referred to larger bench
The Court ultimately concluded that the issue requires authoritative determination by a bench constituted by the Chief Justice of India. Importantly, the Bench clarified that the reference is not confined merely to the correctness of Gulfisha Fatima or Andrabi. Instead, it concerns the broader constitutional approach to bail in prosecutions under special statutes involving prolonged incarceration and restrictive bail provisions. The Court specifically directed that the larger bench should “clarify or expound” the law laid down in K.A. Najeeb, particularly in the backdrop of the rigours of Section 43D(5).
Interim bail to Tasleem Ahmed and Khalid Saifi
Despite making the reference, the Court simultaneously recognised that the present appellants had already undergone substantial incarceration and that the trial was unlikely to conclude immediately.
The Bench observed that the accused “cannot be made to suffer continued incarceration merely because an important question of law has arisen for authoritative settlement.” Accordingly, the Court granted interim bail for six months subject to stringent conditions.
Among the conditions imposed were:
- execution of personal bonds of Rs. 2 lakh with two local sureties;
- surrender of passports;
- prohibition on leaving Delhi without prior permission;
- mandatory appearance before the trial court;
- prohibition on contacting witnesses;
- prohibition on tampering with evidence;
- a restriction on making public statements through print, electronic or social media touching upon the merits of the case or pending trial;
- and a direction to report to the Investigating Officer every fortnight.
The Court also warned that any attempt to delay the trial after release on interim bail would be viewed seriously and could result in cancellation of bail.
Background: The Delhi riots conspiracy case
The present proceedings arise from FIR 59/2020 concerning the alleged larger conspiracy behind the February 2020 North-East Delhi riots during protests against the Citizenship Amendment Act, 2019, in which more than 50 people were killed.
Tasleem Ahmed has remained in custody since his arrest under various provisions of the IPC, UAPA and Arms Act. His bail applications had repeatedly been rejected by lower courts, although the Supreme Court had earlier indicated that he could seek parity with co-accused.
Khalid Saifi, associated with United Against Hate, has spent over five years in custody and has sought parity with co-accused who were granted bail earlier this year. The prosecution alleges that he participated in meetings and WhatsApp groups connected with mobilisation during the anti-CAA protests and delivered inflammatory speeches — allegations he disputes.
The Court had earlier, in January 2026, granted bail to five accused persons including Gulfisha Fatima while refusing bail to Umar Khalid and Sharjeel Imam, setting the stage for the present constitutional controversy over the meaning and reach of K.A. Najeeb.
The complete order may be read below:
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