On UAPA and bail, the Supreme Court must heed the rule it laid down

The Supreme Court decision granting bail to a person accused in a narco-terrorism case in J&K, in which he had been incarcerated as an undertrial under the UAPA for five years, is significant for more than one reason. The bench comprising Justices B V Nagarathna and Ujjal Bhuyan has reiterated that even the rigours of stringent bail provisions in terror cases would “melt down” when prolonged incarceration and delayed trial produce a violation of Article 21 of the Constitution, which guarantees the individual’s right to life and personal liberty. It also did something the Court rarely does: It called out its own deviation from the rule.

In the 2001 ruling in K A Najeeb, the SC laid down that an undertrial suffering prolonged incarceration with completion of trial not in sight must be granted bail — even under the Unlawful Activities Prevention Act (UAPA). However, the establishment of this rule has been followed by a plurality of judicial approaches, with some benches abiding by the “good law”, and others deviating from it. A notable deviation came in the January 2026 order in the bail hearing of the accused in the North-East Delhi riots. For those who were granted bail in the case, the reason cited was not delay, which the Najeeb ruling required, but that they figured lower in a “hierarchy of offences” that the Court created. For Umar Khalid and Sharjeel Imam, the Court said that their prolonged incarceration had not crossed the “threshold of constitutional impermissibility”. Justice Nagarathna’s bench has now wisely cautioned that if a smaller bench disagrees with a larger one, it must refer the case to the Chief Justice of India, not deviate from it and render the rule meaningless. It is nobody’s case that mechanical consistency must replace judicious interpretation, especially in a polyvocal court with 34 judges. However, some principles are irrefutable. As the bench underlined: “Ideally, the more serious the accusations are, the speedier the trial should be.”

At a time when legislation carves out increasingly sweeping definitions of crimes, even as punishments become harsher, the SC bench’s intervention is much needed. The Court cited NCRB data, noting that the countrywide conviction rate under the UAPA for the five years between 2019 and 2023 hovers between 2 and 6 per cent — that is, a 94 to 98 per cent probability of acquittal in such cases nationally. In J&K, the conviction rate has remained below 1 per cent. In public speeches, judges often repeat the adage “bail is the rule, jail is the exception”, as former CJI D Y Chandrachud did in 2024, days before demitting office. But the judiciary needs to do more than just that. Especially in cases that involve the protection of fundamental liberties against state abuse, the Court must listen to itself, and abide by its better instincts.