In Tasleem Ahmad vs. State (Govt. of NCT of Delhi) (2026), Supreme Court's 2-judge bench passed an unreasoned order dated May 22, 2026, a 2-judge Bench of the Supreme Court referred to a larger Bench the question of how Article 21 is to be applied against the statutory bar on bail under Section 43D(5) of the Unlawful Activities (Prevention) Act, (UAPA) 1967. The provision states that no person shall be granted bail for an offence under the UAPA if a court is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”.
Justices Aravind Kumar and Prasanna V. Parale passed a 28-page long order dated May 22, 2026, which reads:"5. The issue, as projected before us, is not a narrow one concerning the bail prayer of the present appellants alone. It concerns the proper constitutional approach to be adopted where prolonged incarceration and delay in conclusion of trial are pressed as grounds for bail notwithstanding the statutory restraint contained in Section 43D(5) of the UAPA. 6. At the outset, we deem it appropriate to record that K.A. Najeeb (supra) is an authoritative pronouncement of a three-Judge Bench of this Court. It preserves the constitutional force of Article 21, while at the same time recognising the legislative policy underlying special statutes such as the UAPA. 7. In K.A. Najeeb (supra), this Court held that the presence of statutory restrictions such as Section 43D(5) of the UAPA does not per se oust the power of constitutional courts to grant bail where continued detention violates Part III of the Constitution. At the same time, the three-Judge Bench expressly recognised that at the commencement of proceedings courts are expected to appreciate the legislative policy against grant of bail; and that the rigour of such provision may melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. 8. The ratio of K.A. Najeeb (supra), therefore, is neither a charter for indefinite incarceration under the cover of Section 43D(5), nor a mathematical command that the mere passage of time, divorced from all surrounding circumstances, must automatically result in bail. 9. It is in this background that the decision in Gulfisha Fatima v. State (Govt. of NCT of Delhi) [hereinafter referred to as “Gulfisha Fatima”] requires to be understood. The said judgment proceeded on the very premise that K.A. Najeeb binds all Benches of lesser strength. It expressly recognised that Article 21 occupies acentral place in the constitutional scheme; that the right to speedy trial is a facet of personal liberty; and that pre-trial incarceration cannot, by mere passage of time, assume the character of punishment. It further recognised K.A. Najeeb as a constitutional safeguard against unconscionable detention and recorded that there can be no second opinion on the proposition that statutory restrictions must yield in an appropriate case. At this juncture, we deem it necessary to reproduce certain portions of Gulfisha Fatima below:
“32. In Union of India v. K.A. Najeeb, this Court recognised a constitutional safeguard that cannot be ignored: statutory restrictions cannot be applied so as to render the guarantee of
personal liberty illusory. It was held that where the trial is not likely to commence or conclude within a reasonable period, constitutional courts
retain the jurisdiction to grant bail notwithstanding statutory restraints. The decision thus operates as a protection against unconscionable detention and there can be no second opinion on the said principle.”
“52. The consequence of the above is that Najeeb(supra) must be understood as a principled safeguard against unconscionable detention. Prolonged incarceration is a matter of serious constitutional concern and carries great
weight. It is not, however, the sole determinant. The Court must consider, in totality, whether continued detention has become constitutionally unjustifiable, having regard to the role attributed, the statutory context, the limited prima facie material, the trajectory of the trial, the causes of delay, and the availability of intermediate remedies.
53. This approach does not dilute Article 21. It gives Article 21 structured content in a field where the Constitution itself recognises competing interests.Nor does it render Section 43D(5) absolute. It recognises that statutory restraint must yield in an appropriate case where detention becomes punitive by reason of unreasonable and unjustified delay. What it excludes is a mechanical override based on time alone, divorced from legal context.”
The order reads: "10. What Gulfisha Fatima (supra) declined to accept was a mechanical or solitary application of delay. The judgment held that the inquiry into delay is contextual and must take into account the nature of allegations, the statutory field, the stage of proceedings, the realistic trajectory of trial, the causes contributing to delay, the role attributed to the accused, the prima facie material, the availability of intermediate safeguards and the risks attendant upon release. 11. The said approach, in our considered view, does not dilute Article 21. It gives Article 21 structured content in a field where the Constitution requires the Court to accommodate personal liberty, fair trial, societal security and the legislative judgment underlying a special statute. The judgment in Gulfisha Fatima understood the findings and ratio in K.A. Najeeb as a principled safeguard against unconscionable detention, and not as a mathematical formula of universal application. 12. In Gulfisha Fatima, bail was granted to five of the seven appellants before the Court. Bail was declined to two appellants not because Article 21 was treated as subordinate to Section 43D(5), but because, upon an accused-specific evaluation, the Court found that their role, the prima facie material attributed to them, and the attendant concerns of trial integrity did not, at that stage, justify overriding the statutory embargo. Even in respect of those two appellants, liberty was reserved to renew the prayer for bail upon completion of examination of protected witnesses or upon expiry of one year, whichever was earlier. That course itself shows that the judgment treated Article 21 as a continuing constitutional check and not as a spent or excluded consideration. 13. One circumstance in the present batch deserves particular notice. The present appellants themselves have placed reliance upon Gulfisha Fatima in support of their prayer for bail. This circumstance is not without significance. If Gulfisha Fatima had proceeded on the basis that Section 43D(5) eclipses Article 21, or that prolonged incarceration has no constitutional bearing in UAPA prosecutions, it could hardly have been invoked by accused persons seeking enlargement on bail. The very reliance placed upon it demonstrates that the said decision cannot be placed in a rigid or one-sided frame. 14. In a later decision in Syed Iftikhar Andrabi v. National Investigation Agency, Jammu another coordinate Bench has expressed serious reservations on certain aspects of Gulfisha Fatima, including the manner in which K.A. Najeeb was applied. The later decision has observed, inter alia, that Gulfisha Fatima adopts a narrower reading of K.A. Najeeb and that such reasoning amounts to a hollowing out of the constitutional force of the three-Judge Bench decision. 15. We do not propose to enter into any adjudication on the correctness of observations made by a coordinate Bench. Judgments of this Court are not to be answered by counter-observations from another Bench of equal strength. The discipline of precedent demands a higher institutional method. 16. However, where a coordinate Bench entertains reservations about the reasoning of an earlier coordinate Bench, particularly on the application of a binding three- Judge Bench decision, the proper course is well settled. The matter must ordinarily be placed before Hon’ble the Chief Justice of India for constitution of an appropriate Bench. A coordinate Bench cannot, by strong observations, effectively unsettle the ratio of an earlier coordinate Bench while continuing to sit in equal strength. 17. We deem it necessary to observe that disagreement between coordinate Benches, by itself, is neither unusual nor undesirable. The law has often grown through reasoned difference. What the discipline of precedent does not countenance, however, is a course by which an earlier coordinate Bench is subjected to reservations of a fundamental character, particularly on the alleged misapplication of a larger Bench decision, without the matter being placed before a Bench competent in strength to resolve the perceived conflict. A coordinate Bench may distinguish an earlier decision, may explain its own understanding of the law, and may, in an appropriate case, express doubt. But where the doubt goes to the root of the legal principle applied, the matter cannot be left at the
stage of criticism. A doubt expressed in emphatic terms is still a doubt; it is not a declaration of law. Unless resolved by a Bench of appropriate strength, it only introduces uncertainty in the administration of justice. 18. The obligation of judicial discipline is, therefore, not discharged by merely stating it. It lies in adopting the course which the institution requires. A Bench of equal strength cannot achieve, by language of reservation, what it cannot achieve by declaration of law. If the earlier view is thought to be inconsistent with a larger Bench decision,the proper course is reference. That course protects not merely the judgment doubted, but the authority of this Court itself. In matters touching personal liberty, national security, statutory restrictions on bail and prolonged incarceration, uncertainty in the law is itself an institutional cost. We, therefore, consider it our duty not to add another competing formulation to the field, but to place the perceived conflict before a Bench of appropriate strength so that the law may speak with the clarity and authority expected of this Court. 19. It is possible for Benches of this Court to differ in emphasis. It is equally possible that two decisions may proceed on the same constitutional foundation but apply it differently to distinct factual settings. But where the difference is projected as one concerning the binding force of a three-Judge Bench decision, and where such difference is likely to affect pending trials under special statutes across the country, the matter cannot be left to uncertain application by courts. 20. We are also conscious that an unqualified reading of the proposition that lapse of time by itself must compel bail in every case under the UAPA may have serious consequences. Such an approach may leave little room for courts to examine the nature of allegations, centrality of role, protected witnesses, risk of intimidation, possibility of reactivation of networks, nature of delay and whether such delay is attributable to the accused himself/herself, public order concerns and national security implications.On the other hand, an equally unqualified insistence on Section 43D(5) without regard to prolonged incarceration would imperil Article 21. The Constitution does not command either extreme. It is this precise issue that may warrant attention of the appropriate bench dealing with the issues. 21. The question, therefore, is not whether Article 21 survives Section 43D(5). It undoubtedly does. The true question is how Article 21 is to be applied in a statutory field where Parliament has consciously imposed restrictions on bail in respect of offences alleged to affect the security of the State and the stability of civic life. 22. We clarify that nothing in this order is intended to whittle down, dilute, read narrowly, or detract from the authority of K.A. Najeeb. On the contrary, the present reference is necessitated because K.A. Najeeb deserves application with the clarity, consistency and institutional fidelity which a binding three-Judge Bench decision commands. If a coordinate Bench has expressed reservations on the manner in which another coordinate Bench has applied K.A. Najeeb, the proper answer is not further reservation. The proper answer is authoritative resolution. 23. We are, therefore, of the considered view that the issue requires consideration by Bench to be constituted by the Hon’ble Chief Justice of India. This is necessary not merely for the present batch of matters, but to settle the correct approach to bail under special statutes where Article 21, prolonged incarceration and statutoryrestrictions intersect.24. Having regard to the importance of the issue, we are of the view that the questions requiring consideration need not be confined to the correctness of any one decision. The controversy raises a broader question concerning the manner in which constitutional courts are to approach bail where prolonged incarceration is asserted in prosecutions governed by special statutes imposing restrictive bail conditions. In this background it would be imperative or in other words necessary for the appropriate bench that may be constituted by the Hon’ble Chief Justice of India, to clarify or expound the position of law laid down in K.A. Najeeb’s case, particularly in the backdrop of the rigour of 43D (5) which imposes restriction consciously and has received the assent of the Parliament, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 of the Constitution of India. 25. Registry is directed to place the papers before Hon’ble the Chief Justice of India for constitution of an appropriate Bench to resolve the aforesaid issues. 26. We clarify that the present reference shall not be understood as an expression of final opinion on the merits of the prosecution case or on the guilt or innocence of the appellants. Nor shall the present order be read as affirming or disapproving any factual finding recorded in any earlier bail order. The reference is confined to the legal questions noticed above."
The order reads: "27. Having said so, we cannot lose sight of the fact that the present appellants have undergone substantial incarceration; that the trial is not likely to conclude immediately; that the appellants themselves have invoked the principle of calibrated constitutional discretion
recognised in Gulfisha Fatima; and that the determination of the issues may consume further time. The appellants cannot be made to suffer continued incarceration merely because an important question of law has arisen for authoritative settlement. Without expressing any opinion on merits, and subject to stringent safeguards, we are inclined to grant interim bail to the appellants pending further orders."
It added:"List the matters after orders are passed by Hon’ble the Chief Justice of India on the administrative side."
In Union of India vs. K A Najeeb (2021), a 3-Judge bench arrived at a decision by Division Bench of the Supreme Court which s binding on the 2-judge benches of the Supreme Court, High Courts, all the courts and law enforcement agencies in the country. On the issue of bail in UAPA cases, the law is settled by a binding precedent created by the 3-judge bench of Justices Surya Kant, Aniruddha Bose and N.V. Ramana. It was authored by Justice Surya Kant. In his judgement dated February 1, 202, he concluded: "keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of our Constitution have been well protected. 20. Yet another reason which persuades us to enlarge the Respondent on bail is that Section 43D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under the UAPA. Instead, Section 43D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the wellsettled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc....
21. In light of the above discussion, we are not inclined to interfere with the impugned order."
In Syed Iftikhar Andrabi vs. National Investigation Agency, Jammu (2026), Supreme Court's Division Bench of Justice BV Nagarathna and Justice Ujjal Bhuyan observed, "We have further discussed the judgment in Gulfisha Fatima. We harbor serious reservations on various aspects of that judgment, including its directive foreclosing the right of the appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that Najeeb is merely a narrow and exceptional departure from Section 43-D(5), justified only in extreme factual situations...It is precisely this hollowing out of the import of the observations in Najeeb that concerns us. No reading of Najeeb suggests that the mere passage of time, divorced from all surrounding circumstances, mechanically entitles an accused to release. The real concern addressed in Najeeb lay elsewhere." It ruled on bail applications in a Unlawful Activities [Prevention] Act (UAPA) case. The judgement dated May 18, 2026 was authored by Justices Ujjal Bhuyan with invaluable inputs of Justice B.V. Nagarathna, wherein, it clarified and reiterated the legal position following K.A. Najeeb case.
It stated that it had reservations about a recent decision dated January 5, 2026 in Gulfisha Fatima vs. State (Govt. of NCT of Delhi) (2026) by Supreme Court's 2-Judge Bench of Justices Aravind Kumar and N. V. Anjaria. It was authored by Justice Kumar. It denied bail in a similar UAPA case. Justice Kumar concluded:"430. This Court is satisfied that the prosecution material, taken at face value as required at this stage, discloses a prima facie attribution of a central and formative role by the appellants in appeals arising out of SLP (Crl.) No. 14165 of 2025 and SLP (Crl.) No. 14030 of 2025 i.e., Umar Khalid and Sharjeel Imam in the alleged conspiracy. The material suggests involvement at the level of planning, mobilisation, and strategic direction, extending beyond episodic or localised acts. The statutory threshold under Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967, therefore stands attracted qua these appellants. 431. While the period of incarceration undergone by these appellants is substantial and has been duly considered, the Court is not persuaded that, on the present record, continued detention has crossed the threshold of constitutional impermissibility so as to override the statutory embargo. The complexity of the prosecution, the nature of evidence relied upon, and the stage of the proceedings do not justify their enlargement on bail at this juncture as noticed in detail in the discussion made hereinabove. Hence, the appeals arising out of SLP (Crl.) No. 14165 of 2025 and SLP (Crl.) No. 14030 of 2025 stands rejected. 432. We reiterate that courts are under a constitutional obligation to ensure that criminal proceedings, particularly those involving prolonged pre-trial incarceration, should progress with utmost expedition and the accused are not left to languish in jail. At the same time, the Court is mindful that pre-trial detention, even when justified by statute, cannot be permitted to continue without regard to the progress of the trial. The restraint on liberty contemplated by law must proceed alongside a meaningful advancement of the prosecution. In the present case, having regard to the reliance placed upon protected witnesses, this Court considers it appropriate to provide a defined point for consideration of their prayer for grant of bail. We are of the opinion that on the completion of the examination of the protected witnesses relied upon by the prosecution, or upon the expiry of a period of one year from the date of this order, whichever is earlier, these two appellants would be at liberty to renew their prayer for grant of bail before the jurisdictional Court. In the event of such prayer being made it shall be considered on its own merits, having regard to the stage then reached in the proceedings before the Trial Court, and without being influenced by the impugned orders or the present order. This course gives effect to the statutory discipline embodied in Section 43D(5) of UAPA while ensuring that the constitutional guarantee under Article 21 operates as a continuing check against continued incarceration without there being any substantial progress of the trial."
The judgement reads:"433. The appeals arising out of SLP (Crl.) No. 13988 of 2025 (Gulfisha Fatima), SLP (Crl.) No. 14132 of 2025 (Meeran Haider), SLP (Crl.) No. 14859 of 2025 (Shifa-ur-Rehman), SLP (Crl.) No. 15335 of 2025 (Mohd. Saleem Khan), and SLP (Crl.) No. 17055 of 2025 (Shadab Ahmed) are allowed as the Court is of the view that, having regard to the role attributed, the nature of the material relied upon, and the present stage of the proceedings, continued incarceration is not shown to be indispensable to the conduct of a fair trial, provided strict safeguards are imposed. The grant of bail in their favour does not reflect any dilution of the seriousness of the allegations, nor does it amount to a finding on guilt. It represents a calibrated exercise of constitutional discretion, structured to preserve both liberty of the individual and security of the nation....v. Each of the appellants, namely Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan, and Shadab Ahmed, shall personally appear twice a week, that is on Monday and Thursday between 10:00 a.m. and 12:00 noon, before the Station House Officer, Police Station Crime Branch, Delhi Police, Office of the Commissioner of Police, Police Headquarters, Jai Singh Marg, New Delhi – 110001 and mark their attendance....vi. The abovenamed appellants shall not directly or indirectly contact, influence, intimidate or attempt to contact any witness or any person connected with the proceedings, nor shall they associate with or participate in the activities of any group or organization linked to the subject matter of the present FIR/ final report. vii. The appellants shall not make or publish or disseminate any information, statement, article or post whether in print, electronic or social media concerning the present case or its participants till conclusion of the trial. viii. The appellants shall not participate in any programme or address or attend any gathering, rally or meeting, whether physically or virtually till conclusion of the trial. ix. The appellants shall not circulate any post either in electronic form or physical form or circulate any hand bills, posters, banners, etc in any form whatsoever. x. The appellants shall fully cooperate with the trial and shall appear on every date of hearing unless exempted for reasons to be recorded by the Trial Court to its satisfaction and they shall not exhibit any conduct that has the effect of delaying the proceedings. xi. The appellants shall maintain peace and good behaviour throughout and in the event of any offence committed during the pendency of the trial, the prosecution would be at liberty to seek for revocation of the bail granted by filing such application before the Trial Court and in the event of such application being filed the Trial Court shall consider it on its own merits. 435. In case of breach of any of the afore-stated conditions imposed or in the event of appellants having misused the liberty granted, it shall be open to the Trial Court to cancel the bail which would be necessarily after affording opportunity of hearing to the appellants.... 436. Before we conclude, it bears reiteration that a principle lies at the heart of constitutional adjudication in matters of this nature. The Constitution guarantees personal liberty, but it does not conceive liberty as an isolated or absolute entitlement, detached from the security of the society in which it operates. The sovereignty, integrity, and security of the nation, as well as the preservation of public order, are not abstract concerns rather they are constitutional values which Parliament is entitled to protect through law. Where a special statutory framework has been enacted to address offences perceived to strike at these foundations, courts are duty-bound to give effect to that framework, subject always to constitutional discipline. 437. In the application of such law, the Court does not proceed on identity, ideology, belief, or association. It proceeds on role, material, and the statutory threshold governing the exercise of jurisdiction. Criminal law does not mandate identical outcomes merely because allegations arise from the same transaction. Those alleged to have conceived, directed, or steered unlawful activity or terrorist activity stand on a different legal footing from those whose alleged involvement is confined to facilitation or participation at a different level. To disregard such distinctions would itself result in arbitrariness. 438. The present decision reflects this constitutional method. It neither endorses the prosecution case nor prejudges the guilt of any accused. It applies the law as it stands, recognising that individual liberty must be protected, but that it must also withstand the legitimate demands of national security and collective safety. This balance is not a matter of preference rather it is a matter of constitutional duty. 439. Before parting, it is necessary to reiterate the limited nature of the present determination. The Court has not examined the merits of the prosecution case beyond the confines mandated at the stage of consideration of an application seeking bail, nor has it expressed any opinion on the ultimate culpability of any of the accused. All observations are confined to the material presently on record and to the statutory and constitutional standards governing pre-trial liberty under a special enactment."
The decision in Gulfisha Fatima case appears to be per incuriam because it did not follow the doctrine of precedent and judicial discipline. The os whether the situation in Gulfisha Fatima was “ordinary” or not, and whether the circumstances’ ‘extraordinariness’ was significant enough to outweigh long incarceration and trial delays when deciding to grant bail. The decision in Gulfisha also referred to the 3-judge decision but it inferred that it was not applicable because it was not dealing with an ordinary situation.
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