Opinion: The bail debate — constitutionalism or legalism?
Lack of uniformity in bail jurisprudence under special statutes such as UAPA, NDPS Act and PMLA has created a legal vacuum within the higher judiciary
By Nayakara Veeresha
On 16 May 2026, the Supreme Court, comprising Justice BV Nagarathna and Justice Ujjal Bhuyan, granted bail to the accused in Syed Iftikhar Andrabi v. National Investigation Agency (2026). A week later, on 22 May 2026, another Division Bench of the Supreme Court referred important questions concerning bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA) to the Chief Justice of India. In Tasleem Ahmed v State Govt NCT of Delhi (2026), the court granted interim bail to the appellants.
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These two decisions, delivered within a span of one week by coordinate Benches of the Supreme Court in cases involving accused persons under the UAPA and the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), raise significant constitutional and legal questions. The issue concerns divergent views on bail jurisprudence under the UAPA and other special statutes, including the NDPS Act and the Prevention of Money Laundering Act, 2002 (PMLA).
The point of contention is the differing interpretations of Union of India v. KA Najeeb (2021), which established that the right to a speedy trial is an integral part of the right to life under Article 21 of the Constitution, even in UAPA cases. The judgment advocated a harmonious balance between the right to life and the court’s jurisdiction while granting bail to those charged with serious offences. It clarified that bail cannot be rejected solely on the basis of the severity of the charges. It also emphasised that, in such cases, the prosecution’s role assumes greater importance in proving the accused guilty in a court of law.
The lack of uniformity in bail jurisprudence under special statutes such as the UAPA, NDPS Act and PMLA has created a legal vacuum within the higher judiciary. The UAPA was enacted to curb unlawful activities and associations, particularly those linked to the Communist Party of India (Maoist). Over time, its scope has been expanded to cover various forms of terrorist activity. The law came into force on December 30, 1967, and has been amended several times, particularly in the aftermath of the 2008 terrorist attacks, to make it more stringent. Section 43A (Power to arrest and search) and Section 43D (5) are especially significant because both provisions deviate from traditional criminal jurisprudence and the principles of natural justice.
Difference in Interpretation
The coordinate bench in Syed Iftikhar Andrabi Vs National Investigation Agency (2026), Jammu, observed that: “We have serious reservations on various aspects of the judgment in Gulfisha Fatima, including foreclosing the right of the two appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D (5) justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with”.
The Supreme Court’s recent rulings in Syed Iftikhar Andrabi and Tasleem Ahmed have exposed divergent approaches to bail under the UAPA and other special statutes, reigniting debate over Article 21, prolonged incarceration, and the balance between personal liberty and national security
The Bench further noted: “In our view, the decision in Gurwinder, inasmuch as it refuses to be bound by Najeeb, is difficult to be followed by us as a matter of precedent. It is plain that a judgment rendered by a Bench of lesser strength is bound by the law declared by a Bench of greater strength. Judicial discipline mandates that such 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’.
In the Tasleem Ahmed Vs. State Govt. NCT of Delhi, the court referred to these observations and raised certain pertinent questions: “how is Article 21 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.” The reason for this reference, according to the court, was to settle the correct approach to bail under special statutes where Article 21, prolonged incarceration and statutory restrictions intersect.
Issues for Analysis
The emergence of differing opinions regarding the binding effect of Najeeb is a welcome development in advancing clarity on bail jurisprudence under the UAPA and other special statutes. Two principal questions warrant discussion and adjudication.
First, does Article 21, including the right to a speedy trial and timely justice, override stringent bail conditions such as Section 43-D (5) of the UAPA and Section 37 of the NDPS Act? Second, the issue extends to the deeper constitutional philosophy and legal positioning of special statutes legislated and enacted to safeguard national security and promote a society free from substance abuse.
The oft-quoted principle that “bail is the rule and jail is the exception” appears to have been effectively reversed as special statutes gained primacy in judicial consideration. In July 2024, former Chief Justice of India DY Chandrachud remarked that “the district judiciary is fearful of granting bail because…”
In 2025, various high courts adjudicated bail matters under the UAPA with varying outcomes, reflecting the lack of uniformity in bail-granting provisions under special statutes. In 2025, the Punjab and Haryana High Court and Maharashtra High Court in Ashish Kumar vs State of Punjab, Anil Baburao Baile v Union of India, respectively granted bail under the UAPA while upholding its constitutionality and holding that the legislation in its current form does not suffer from any constitutional or legal infirmities.
Way Forward
Given the divergent views expressed by various high courts and coordinate Benches of the Supreme Court, it is imperative that these substantive questions of law be settled from the perspective of constitutional philosophy rather than merely statutory interpretation, however crucial such statutes may be for national security.
Whatever may be the statutory framework and its objective of punishing individuals accused of serious offences, including those that threaten national security, damage public property or disturb public order, all laws must function within the ambit of the Constitution and the foundational principle of the criminal justice system that every individual is ‘innocent until proven guilty’.
Any departure from this principle only indicates the corrosion of trust between citizens and the state. Such a trust deficit needs to be bridged by upholding fundamental rights and ensuring adherence to the rule of law and due process, rather than the state’s coercive powers to assume an absolutist character.
(The author is Assistant Professor, Symbiosis Law School, Pune, Symbiosis International [Deemed University], Pune. Views are personal)
