Divergent Judicial Views Prompt Delhi Police Request for Clarification
The Supreme Court is poised to potentially revisit the stringent bail provisions under the Unlawful Activities Prevention Act (UAPA), following Delhi Police’s argument that conflicting rulings from coordinate benches necessitate a larger judicial review. This development arises from ongoing bail hearings, including those for accused in the Delhi riots conspiracy case, where divergent interpretations of UAPA’s Section 43D(5) — which imposes strict conditions for granting bail — have become apparent.
During proceedings before a bench of Justices Aravind Kumar and P B Varale on May 20, 2026, Additional Solicitor General S V Raju presented the Delhi Police's contention. He highlighted differing judicial approaches concerning whether prolonged incarceration or delays in trial can serve as grounds for bail under the UAPA, especially when weighed against the statutory presumption that accusations are prima facie true.
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Conflicting Precedents Emerge
The crux of the matter lies in the Supreme Court’s own pronouncements. A recent judgment on May 18, 2026, by a bench including Justices B V Nagarathna and Ujjal Bhuyan, had affirmed that "bail remains the rule and jail the exception," and that the presumption of innocence should guide courts. This ruling seemingly contrasted with earlier decisions, including those on January 5, 2026, and February 2024, where separate two-judge benches had adopted a different trajectory, according to the police.
Specifically, the bench that granted bail to Syed Iftikhar Andrabi on May 18 referenced the 2021 three-judge bench decision in Union of India vs K A Najeeb. In that case, bail was granted to an individual incarcerated since 2015 for alleged involvement in a 2010 incident. However, the police argued that subsequent judgments in Gurwinder Singh vs State of Punjab and Gulfisha Fatima vs State (NCT of Delhi) appeared to diverge from this established path.
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The Case of Umar Khalid and Others
The debate gains particular urgency in light of bail pleas from individuals accused in the larger Delhi riots conspiracy case. Activist Umar Khalid, along with Sharjeel Imam, was denied bail in January 2026, while five other accused in the same case were granted relief. The court had, at that time, observed that a binding precedent concerning prolonged incarceration might have been overlooked in Khalid’s case.
On May 20, 2026, the same bench hearing the pleas of Tasleem Ahmed and Khalid Saifi was also deliberating on interim bail applications for others, including Khalid. The Delhi Police had opposed Khalid's interim bail, citing potential implications for public order and his release possibly affecting the investigation.
The court, noting the submissions, reserved its decision on the interim bail pleas and indicated it would consider the police's request for a larger bench review on May 20, 2026. Justice Kumar had questioned ASG Raju whether his stance implied an error by a coordinate bench, to which Raju responded he had not yet had time to review the specific judgment.
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UAPA and Bail Restrictions
The Unlawful Activities (Prevention) Act (UAPA) is India’s primary anti-terror legislation. Section 43D(5) of the Act states that bail shall not be granted if the court is of the opinion that there are reasonable grounds for believing that the accusation is prima facie true. This provision creates a significant hurdle for accused seeking release.
The K A Najeeb judgment had previously recognized prolonged incarceration as a valid ground for bail, even under stringent laws. The current debate hinges on whether this principle can override the strict bail restrictions mandated by Section 43D(5) of UAPA, particularly in light of seemingly inconsistent interpretations by different Supreme Court benches.
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In a related development, a Delhi court on Tuesday, May 19, 2026, rejected Umar Khalid's interim bail plea, filed on humanitarian grounds concerning his mother's health. The police had also opposed this plea, raising concerns about public order.
