Summary of this article
The Supreme Court criticised two earlier rulings, including the Gulfisha Fatima judgment denying bail to Umar Khalid and Sharjeel Imam.
The court criticism cited failing to properly follow the 2021 KA Najeeb precedent on prolonged incarceration.
The bench warned that smaller benches cannot “dilute, circumvent or disregard” judgments delivered by larger benches and reiterated that “bail is the rule and jail is the exception” even in UAPA cases.
The Supreme Court on Monday expressed serious reservations about a January 2026 judgment delivered by a two-judge bench in Gulfisha Fatima v. State, which had denied bail to Umar Khalid and Sharjeel Imam in the Delhi riots larger conspiracy case.
The Court observed that the ruling did not properly follow the principles laid down by a three-judge bench in Union of India v. KA Najeeb (2021), which recognised prolonged delay in trial as a valid ground for granting bail in cases under the Unlawful Activities (Prevention) Act (UAPA).
The bench also voiced disapproval of another two-judge bench ruling in Gurwinder Singh v. Union of India (2024) for similarly failing to apply the precedent established in KA Najeeb.
The observations were made by a bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan while granting bail to Syed Iftikhar Andrabi, who has spent more than six years in custody in a UAPA case involving allegations of terror financing through narcotics trafficking.
Court Says Smaller Benches Cannot Ignore Larger Bench Precedents
In the judgment authored by Justice Bhuyan, the Court underlined that the three-judge bench ruling in KA Najeeb clearly held that prolonged incarceration could justify bail under the UAPA despite the restrictions imposed by Section 43D(5) of the Act.
However, the Court noted that the judgments in Gurwinder Singh and Gulfisha Fatima adopted a divergent approach.
"A judgment rendered by a bench of lesser strength is bound by the law declared by the bench of greater strength. Judicial discipline mandates that such a binding precedent must either be followed 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," Justice Bhuyan stated in the judgment.
The Court further observed that the pre-Najeeb ruling in NIA v. Zahoor Ahmed Shah Watali (2019) could not be used to justify prolonged pre-trial incarceration under the UAPA.
Court Rejects ‘Two-Prong Test’ Introduced In Gurwinder Singh
The bench criticised the “two-prong” test laid down in Gurwinder Singh, under which bail could only be considered if the accused first demonstrated that there was no prima facie merit in the prosecution’s case.
According to the Court, such a test finds no basis either in the UAPA or in the KA Najeeb ruling.
The Court stressed that Najeeb specifically held that prolonged delay in trial itself could become a sufficient ground for granting bail, irrespective of other considerations.
Highlighting the dangers of the “two-prong” test, Justice Bhuyan observed:
"If this test is accepted, the State needs only to satisfy a low prima facie threshold while the trial may continue for years, with the result that pre-trial incarceration begins to acquire a post-trial punitive character. And even then, no court will ever grant bail, no matter the length of period of such incarceration, because the case is prima facie true."
The judgment added that a plain reading of KA Najeeb showed that the earlier ruling was intended precisely to prevent such a situation from arising.
Supreme Court Expresses Reservations Over Gulfisha Fatima Judgment
The bench also specifically criticised the Gulfisha Fatima judgment for observing that the principles laid down in KA Najeeb would apply only in exceptional cases and that the mere passage of time in custody could not automatically justify bail.
"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," Justice Bhuyan stated.
Reaffirming the binding nature of the KA Najeeb ruling, the Court said:
"We make it clear that KA Najeeb is binding law and entitled to the protection of stare decisis. It cannot be diluted, circumvented or disregarded by the trial court, the High Court or even by benches of lower strength of this court," Justice Bhuyan pronounced.
The Court noted that KA Najeeb had specifically recognised the harshness of Section 43D(5), which often makes bail nearly impossible in UAPA cases and can result in years of incarceration before trial concludes.
‘Bail Is The Rule, Jail Is The Exception’
The Supreme Court reiterated that the principle that “bail is the rule, jail is the exception” remains applicable even in UAPA cases.
According to the bench, the restrictions under Section 43D(5) must remain subordinate to the constitutional guarantee of personal liberty under Article 21.
"Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception," the Court held.
The Court also observed that Article 21 protections apply irrespective of the seriousness of the offence alleged.
"Ideally, the more serious the accusations are, the speedier the trial should be," the Court stated.
The bench referred to the 2024 judgment in Sheikh Javed Iqbal, which had followed KA Najeeb and granted bail in a UAPA case solely on the ground of delay in trial.
It also criticised the tendency of smaller benches to gradually weaken precedents established by larger benches without formally disagreeing with them.
Incidentally, both Gurwinder Singh and Gulfisha Fatima were authored by Justice Aravind Kumar.
Case Against Syed Iftikhar Andrabi
The case before the Court concerned Syed Iftikhar Andrabi, a resident of Handwara in Jammu and Kashmir’s Kupwara district, who was arrested by the National Investigation Agency (NIA) on June 11, 2020.
The NIA alleged that Andrabi was part of a cross-border syndicate involved in procuring heroin from the Tangdhar border region and funnelling the proceeds to terror organisations including Lashkar-e-Taiba and Hizbul Mujahideen.
He is being prosecuted under provisions of the NDPS Act, the UAPA, and Section 120-B of the Indian Penal Code relating to criminal conspiracy.
His bail plea had earlier been rejected by the Special NIA Court in August 2024. The Jammu and Kashmir and Ladakh High Court also dismissed his plea on August 19, 2025, despite noting that he had already spent nearly five years in custody.
The High Court had held that the seriousness of the allegations and the material available on record outweighed the arguments in favour of bail and observed that the trial was still at an early stage.
(with inputs from Live Law)
