Bhubaneswar: In a potentially landmark move that could reshape India’s bail jurisprudence in terror cases, the Supreme Court on Friday referred to a larger Bench the critical constitutional questions surrounding Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA) and its interplay with Article 21, the fundamental right to life and personal liberty.

The reference came while a Division Bench of Justices Aravind Kumar and PB Varale granted six months’ interim bail to Delhi riots accused Tasleem Ahmed and Khalid Saifi. However, beyond the interim relief lies a far bigger legal battle — whether stringent anti-terror bail restrictions under UAPA can override constitutional protections against prolonged incarceration without trial.

At the heart of the controversy are earlier Supreme Court rulings involving activists Umar Khalid and Sharjeel Imam, both accused in the 2020 Delhi riots conspiracy case. Their bail pleas had earlier been rejected under the rigorous standards prescribed in Section 43D(5) of UAPA.

Now, the apex court has acknowledged an emerging judicial conflict over how far courts can relax those restrictions when trials are delayed for years.

What Exactly Is Section 43D(5) of UAPA?

Section 43D(5) is considered one of the toughest bail provisions in Indian criminal law.

Ordinarily, criminal jurisprudence follows the principle of “bail, not jail.” But UAPA flips that presumption.

Under Section 43D(5), courts cannot grant bail if the accusations against an accused appear “prima facie true” after examining the chargesheet and case diary submitted by the investigating agency.

In practical terms, this means:

* Courts are not expected to conduct a detailed examination of evidence at the bail stage.

* Even weak or preliminary evidence can be enough to deny bail if it establishes a plausible accusation.

* The accused gets very limited opportunity to rebut the prosecution’s narrative at the bail stage.

* This provision has often resulted in prolonged incarceration of accused persons before trials even begin fully.

The Constitutional Clash: Article 21 vs Anti-Terror Restrictions

The legal debate intensified after a recent Supreme Court ruling in the Syed Iftikar Andrabi case, where a Bench led by Justice BV Nagarathna observed that constitutional courts cannot mechanically deny bail merely because UAPA is invoked.

The Bench stressed that even under anti-terror laws, personal liberty under Article 21 remains paramount and that “bail is the rule, jail the exception.”

That ruling questioned the correctness of the January 2026 judgment denying bail to Umar Khalid and Sharjeel Imam in the Delhi riots conspiracy case.

The Nagarathna Bench relied heavily on the earlier K.A. Najeeb judgment, where the Supreme Court had ruled that prolonged delays in trial can justify bail even under stringent UAPA provisions.

The Court had then held that constitutional courts retain overriding powers to protect fundamental rights if incarceration becomes excessive and trials remain indefinitely delayed.

Centre Pushes Back Against Blanket Bail Principle

During Friday’s hearing, Additional Solicitor General SV Raju strongly opposed any broad reading of Article 21 that could dilute UAPA’s strict bail standards.

He argued that terror-related offences cannot be treated like ordinary criminal cases and warned against giving all UAPA accused the blanket benefit of “bail not jail” principles.

According to the Centre, Parliament intentionally imposed stricter thresholds under Section 43D(5) considering national security concerns.

The government also contended that delay alone should not automatically entitle accused persons to bail in serious conspiracy and terror-financing cases.

Supreme Court Signals Institutional Concern

Interestingly, the Bench appeared concerned not only about the legal issue itself, but also about judicial discipline between coordinate Benches of equal strength.

The Court noted that while the Andrabi judgment expressed reservations about the earlier Gulfisha Fatima ruling, a Bench of equal strength cannot effectively unsettle another Bench’s ratio merely through critical observations.

“A coordinate bench cannot achieve by language of reservation what it cannot achieve by declaration of law,” the Court observed.

The Bench clarified that the real constitutional question is not whether Article 21 survives Section 43D(5), but how both are to be harmoniously applied when Parliament has imposed statutory restrictions on bail.

Why This Reference Matters

The larger Bench decision could significantly impact future UAPA prosecutions across India.

If the Court strengthens the Article 21 protections laid down in K.A. Najeeb and Andrabi, it may become easier for accused persons facing endless trials to seek bail despite Section 43D(5).

However, if the Court upholds a stricter interpretation favouring national security considerations, it could reinforce the already formidable barriers to securing bail in terror-related cases.

The ruling is also likely to influence hundreds of pending UAPA matters involving allegations of terror conspiracy, extremist financing, and organised violence.

Background: The Delhi Riots Conspiracy Case

The Delhi riots case stems from the communal violence that erupted in North-East Delhi in February 2020 during protests against the Citizenship Amendment Act (CAA).

More than 50 people were killed in the violence.

Investigating agencies alleged that several activists and protest organisers were part of a larger conspiracy to trigger riots. Multiple accused, including Umar Khalid, Sharjeel Imam, Gulfisha Fatima, Khalid Saifi, and Tasleem Ahmed, were booked under UAPA provisions.

While some accused recently secured bail, Umar Khalid and Sharjeel Imam continue to remain incarcerated, making their cases central to the evolving constitutional debate over liberty versus national security.

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