Supreme Court doubts its own judgment in Umar Khalid case; says bail is rule jail is exception even in UAPA cases

The Supreme Court on Monday opined that bail should be the rule and jail the exception even in UAPA cases, and expressed serious reservations about its own earlier judgment delivered by another Bench denying bail to activist Umar Khalid in the Delhi riots case [Syed Iftikhar Andrabi Vs. National Investigation Agency, Jammu].

A Bench of Justices BV Nagarathna and Ujjal Bhuyan made the observation while granting bail to a Kupwara resident who has been in jail awaiting trial since June 2020 in connection with a narco-terrorism registered by the National Investigation Agency (NIA).

Notably, it expressed reservations about the judgment in Gulfisha Fatima v. State. This ruling concerned bail to the Delhi riots accused. While several accused were granted bail, activists Umar Khalid and Sharejeel Imam were denied bail.

"We have serious reservations about judgment in Gulfisha Fatima. The judgment in Gulfisha Fatima would have us believe that Najeeb (a caselaw which says accused cannot be indefinitely jails) is only a narrow and exceptional departure from Section 43D(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 broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release," the Court today said.

The Court added that bail should be the rule even in cases under the Unlawful Activities (Prevention) Act, 1967 (UAPA), and that the right to speedy trial cannot be defeated merely because an accused has been booked under this stringent anti-terror law.

"The statutory embargo of Section 43D(5) UAPA must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception. Of course, in an appropriate case, bail can be denied having regard to the facts of that particular case," the Court held.

It further underscored that the Supreme Court's ruling in Union of India v. KA Najeeb cannot be diluted, even by other Benches of the top court unless they form a larger Bench.

Notably, in the Najeeb case, a three-judge Bench of the Supreme Court had ruled that the right to speedy trial and related rights under Article 21 would apply to UAPA accused as well. This meant that UAPA accused could be released on bail if their trial is indefinitely delayed.

"In that spirit, we make it clear that Najeeb is binding law and entitled to the protection of judicial discipline. It cannot be diluted, circumvented, or disregarded by trial courts, High Courts, or even by benches of lower strength of this Court," the Court held today.

The Court also expressed concerns over a trend where smaller Benches were diluting larger Bench decisions without expressly disregarding them.

"More particularly, the issue concerns the propriety of smaller benches progressively hollowing out the constitutional force of a larger bench decision without ever expressly disagreeing with it," the Court said.

The Court reminded that smaller Benches are bound by larger Bench decisions. Even if any doubts arise about the correctness of a larger Bench decision, the smaller Bench cannot dilute the larger Bench's ruling. Rather, the only option is to refer the matter to even larger Bench.

"A decision made 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 in full, 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 ... If a smaller Bench cannot agree with a larger Bench, it can only refer the case to the Chief Justice of India for allocation to a larger Bench," the Court said.

The Court took critical note that two-judge Benches of the top court, including the Umar Khalid bail case (Gulfisha Fatima v. State) had deviated from the views taken in the Najeeb case.

"Judicial discipline and certainty demand that benches of smaller strength are mindful of the decisions rendered by larger benches and are bound to follow the same," the Court added.

It disagreed with the view that in UAPA cases, delays in trial may not entitle an accused to bail. It reminded that in several cases, the Court has categorically held that Article 21 applies, irrespective of the nature of the offence.

"Ideally, the more serious the accusations are, the speedier the trial should be," the Court went on to remark.

The Court further disagreed with the Jammu and High Court's decision to justify the continued incarceration of the accused in the present case, observing that its approach went against legal principles laid down in earlier Supreme Court judgments. 

"The position of law emerging from Najeeb and Sheikh Javed Iqbal (caselaws) is therefore clear. Watali (another caselaw) cannot be invoked to justify indefinite incarceration of the accused under the UAPA," the Court said. 

It emphasised that it was already settled in the Najeeb case that the existence of prima facie case against a UAPA accused cannot be cited to indefinitely keep an undertrial accused in jail.

“A plain reading of Najeeb will show that it was trying to prevent precisely this possibility from arising, when it cautioned that Section 43D(5) must not become the sole metric for denial of bail, causing wholesale breach of the constitutional right to speedy trial,” the Court said. 

The case before the Court pertained to one Syed Iftikhar Andrabi, a resident of Handwara in Kupwara district of Jammu and Kashmir, who was arrested by the NIA on June 11, 2020.

The NIA alleged that Andrabi was part of a cross-border syndicate that procured heroin from the Tangdhar border area and channelled the proceeds to fund terrorist organisations, including Lashkar-e-Taiba and Hizbul Mujahideen.

He is facing trial before a Special NIA Court in Jammu under Sections 8, 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), Sections 17, 38 and 40 of the Unlawful Activities (Prevention) Act, and Section 120-B (conspiracy) of the Indian Penal Code.

The Special NIA Court had rejected his bail application in August 2024. Andrabi challenged that order before the High Court of Jammu and Kashmir and Ladakh at Jammu.

A High Court Division Bench of Justices Sanjeev Kumar and Sanjay Parihar dismissed his bail plea on August 19, 2025. The High Court, while acknowledging that Andrabi had spent close to five years in custody, held that the seriousness of the charges and the material on record outweighed the case for bail. It held that the trial was at an early stage and it would be premature to conclude that the accusations were baseless.

Andrabi then moved the Supreme Court challenging the High Court's order.

While granting him bail today, the top court also took note of the abysmal conviction rate in UAPA cases.

The annual conviction rate in Jammu and Kashmir, in particular, was always below 1 per cent - meaning that there was a 99 per cent chance that an undertrial UAPA accused could be acquitted at the end of trial.

"We have quoted statistics from National Crime Records Bureau. For the five years from 2019 to 2023, the all-India figures show that the rate of conviction minimum is 1.5% and the maximum is 4%, whereas in the case of Jammu and Kashmir, the rate of conviction in 2019 was zero, and the maximum was in 2022 at 0.89%. Therefore, for the all-India figures, we have 2% to 6% convictions, meaning thereby that there is a 94% to 98% possibility of acquittal in such cases in the country. So far as the Union Territory of Jammu and Kashmir is concerned, the annual rate of conviction is always less than 1%. It means that at the end of the trial, there is a 99% possibility of acquittal in such cases," the Court observed.

The Court went on to order Andrabi's release on bail on various conditions, including that he periodically appear before the police, that he cooperate with the probe and that he surrender his passport.

Senior Advocate Shadan Farasat led arguments on behalf of Andrabi.

[Live Coverage]