Article 21, the grundnorm: Rigmarole of bail proceedings under UAPA

A common catchphrase in bail jurisprudence is that “bail is the rule and jail is the exception.” However, with the insertion of Section 43D(5) into the Unlawful Activities (Prevention) Act, 1967, through the UAPA (Amendment) Act, 2008, the legislature introduced a stringent “prima facie” test empowering courts to deny bail where the allegations against the accused appear prima facie true. As a consequence of this amendment, the threshold for denial of bail has been substantially diluted, with the prosecution now required only to demonstrate the existence of a prima facie case against the accused. This legislative shift has, in effect, altered the foundational principle governing bail jurisprudence from “bail is the rule” to a regime under the UAPA where, practically speaking, “rejection of bail has become the rule.”

In the recent ruling of Syed Iftikhar Andrabi v. NIA Jammu 2026 INSC 503, the Supreme Court, while discussing bail proceedings in UAPA Cases, brought to light the conflicting approaches adopted by two coordinate benches of the Supreme Court in matters concerning the Unlawful Activities (Prevention) Act, 1967. Those benches had underscored that Section 43-D(5) of the UAPA imposes a distinct and stringent fetter on the ordinary powers of courts to grant bail, reiterating the legislative intent that, in UAPA cases, “bail must be rejected as a rule.”

However, in a significant constitutional pushback, the Supreme Court criticized those coordinate bench decisions for overlooking the binding three-judge bench ruling in Union of India v. K.A. Najeeb (2021) 3 SCC 173. Reaffirming the primacy of constitutional liberties, the Court categorically held that the rigours of Section 43-D(5) “melt away” where prolonged incarceration and undue delay in trial, result in a violation of Article 21 of the Constitution. In doing so, the Court emphasised that the constitutional inquiry in KA Najeeb supra operates independently of, and where necessary, overrides the statutory embargo contained in Section 43-D(5).

A fundamental doctrinal issue in determining UAPA offenses is the interpretation of Section 43D(5) of the UAPA, which is a statutory condition for release prior to trial. This Section imposes a higher burden of proof on the accused, as it would be during the preliminary portion of a trial if the accusations were prima facie true. The basic question being asked was whether such severe statutory provision can be allowed to completely override a citizen's fundamental rights to speedy trial and personal liberty guaranteed by Articles 21 and 22 of the Constitution. In the past, prosecutors have used this as an argument, frequently backed by a narrow reading of cases such as NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, to claim that the courts at the bail stage have limited or no power to assess the weight of evidence in a case and thus cannot play a significant role in bail proceedings.

However, this Court expressed serious reservations regarding the decision rendered in Gulfisha Fatima vs. State (Govt. of NCT of Delhi), Criminal Appeal No.11 of 2026, decided on 05.01.2026 (bail applications of Umar Khalid and Sharjeel Imam) and Gurwinder Singh vs. State of Punjab and Anr. (2024) 5 SCC 403, wherein the Courts observed that the ruling in K.A. Najeeb supra cannot be applied as a “mathematical formula” of universal application and that prolonged incarceration, by itself, does not automatically justify the grant of bail where the statutory threshold under the UAPA continues to stand attracted. It further goes on to say the legislative intent under the UAPA Act was reverse from the conventional approach under criminal law, and held the principle in UAPA cases is ‘bail must be rejected as a rule’, and that the courts must give full effect thereto.

In the present case, the Supreme Court strongly disapproved of both decisions, reiterating that the Constitution remains the grundnorm and that constitutional guarantees, particularly those flowing from Article 21 of the Constitution, possess dominant force over all statutory enactments, including special legislation such as the UAPA. The judgment reaffirmed that Section 43-D(5) of the UAPA Act, however stringent in its operation, must at all times remain subordinate to the constitutional mandate of personal liberty and speedy trial enshrined under Article 21 of the Constitution of India. In a definitive resolution, the Supreme Court clearly ruled that there are no statutory laws to "invert the constitutional relationship between ‘liberty and detention’". Special security laws, no matter their purpose, must always be limited in restrictions and remain subject to constitutional guarantees. 

The Court thus gave the much-used dictum "bail is the rule and jail is the exception" a constitutional import, going beyond the Criminal jurisprudence and rigors of the Code of Criminal Procedure. The judgment makes it clear that the deprivation of an accused's personal liberty without any prospect of the conclusion of the trial amounts to a gross violation of Article 21, and therefore the Constitutional Courts would be obligated to enlarge the accused on bail. In essence, the decision restores the centrality of the criminal justice system by reaffirming that even stringent anti-terror legislation cannot operate in a manner that altogether excludes meaningful judicial scrutiny of personal liberty. It reinforces the principle that legislative majorities, while empowered to enact special laws in the interest of national security, cannot do so at the cost of constitutional safeguards and judicial oversight.

The Court also expressed its concern over the appropriateness of smaller Benches progressively hollowing out the constitutional force of a larger Bench decision, without ever expressly disagreeing with it. The Court made it clear that a ratio supported by a three-judge bench is not to be 'thinned out', 'circumvented', 'hollowed out,' or 'ignored' by a smaller bench of two. The Court emphasized that a reference to the Chief Justice for consideration by an even larger bench is the only logical and permissible course of action if a smaller bench disagrees with the precedent, and the same ought to be supported by cogent reasons, in writing. The Supreme Court reaffirmed the K.A. Najeeb supra precedent as 'permanent and binding law of the land' across the country as a stabilizing force, ensuring constitutional safeguards against indefinite detention are uniform and strong at every level of the judiciary.

One of the most innovative and important aspects of Andrabi’s judgment is its examination of statistical data, which challenges the notion that a court should be blind to empirical facts when determining whether to keep a citizen in jail indefinitely. The Court was considering the operational reality of the UAPA and examined data from the National Crime Records Bureau (NCRB) for 2019 to 2023, which had originally been placed before Parliament by the Union Ministry of Home Affairs.

The statistics revealed an incredible (if not embarrassing) disparity between the gravity of the pre-trial detention and the success of the prosecutions by the State. The Court pointed out that the conviction rate under the UAPA was shockingly low across the country, ranging from 1.5% to 4%, which translates to a 94% to 98% likelihood of ultimate acquittal. The figures were even more dismal in the heavily policed Kashmir and Jammu districts, where in 2019 the conviction rate was less than 1% and fell to 0%, meaning there was a 99% likelihood of being acquitted or discharged.

This data gives rise to a third-order insight into the process of risk assessment in bail hearings: if 99 of every 100 people charged in some jurisdictions are acquitted, then the only way to ensure that an innocent person does not spend many years in a de facto prison is to refuse bail. The Supreme Court ruled that such extended confinement, on the basis of experience, has a high likelihood of acquittal at the end of the trial, is too extreme for the presumption of innocence. The Court added that this measured fact can justify extended pre-trial custody only if it is well established that the unproven allegations are grave. In including such an empirical metric, the Court determined that a prolonged period in pre-trial custody cannot be justified by the severity of unproven accusations where the chances of obtaining a successful conviction remain statistically low.

The recent judgment warrants appreciation on more than one ground. Most significantly, it emphatically reaffirms the Constitution's supremacy within our legal framework and serves as a reminder that every statutory provision, regardless of its rigor or severity, must operate within the confines of constitutional guarantees. The ruling is a vital reiteration that the powers conferred upon State agencies cannot be exercised in a manner that arbitrarily or disproportionately curtails personal liberty. At a time when stringent special legislations continue to test the breadth and resilience of Article 21, the judgment emerges as a balanced yet resolute affirmation of constitutional morality, due process, and the judiciary’s role as the sentinel on the qui vive.

About the authors: Astha Sharma is a Partner and Anju Thomas is an Associate Partner at AQUILAW.

Disclaimer: The opinions expressed in this article are those of the author. The opinions presented do not necessarily reflect the views of Bar & Bench.

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