On 30 September, a Division Bench of the Delhi High Court, Justices Prathiba M. Singh and Dinesh Bhatt, dismissed the bail appeals of Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case. Both have been in custody for more than six years. The Bench's central reason was that “this Court is bound by judicial discipline” and could not modify the conditions imposed by the Supreme Court in January. The Supreme Court had refused them bail in January and allowed them to apply again only after the protected witnesses were examined or one year had passed, whichever came first. The High Court found neither condition met.
The High Court's reasoning is hard to fault on the narrow point, and the way it holds up exposes a larger problem in how the Supreme Court has handled UAPA bail this year.
In Gulfisha Fatima v. State, decided on 5 January 2026 by Justices Aravind Kumar and N.V. Anjaria, the Court granted bail to five accused and refused it to Khalid and Imam, finding that the prosecution material showed a prima facie case against them and that they played a “central and formative role” in the alleged conspiracy. Under Section 43D(5) of the Unlawful Activities (Prevention) Act, a court cannot grant bail if, on the case diary and charge sheet, it has reasonable grounds for believing the accusation is prima facie true. The Court held that prolonged incarceration could not be treated as the sole determinant of bail, and that whether detention remains constitutionally permissible is a contextual question about the role of the accused, the strength of the material and the realistic course of the trial.
That reading collides with a three-judge decision. In Union of India v. K.A. Najeeb (2021), a Bench of three judges held that Section 43D(5) does not oust the power of constitutional courts to grant bail when an accused has spent a long time in custody with no realistic prospect of trial ending. Najeeb explained that the approach in Watali could not, by itself, foreclose constitutional relief under Article 21 once delay becomes unconscionable.
On 18 May 2026, in Syed Iftikhar Andrabi v. NIA, Justices B.V. Nagarathna and Ujjal Bhuyan disapproved of how Gulfisha Fatima had read Najeeb. “KA Najeeb is binding law and entitled to the protection of stare decisis,” the Bench held, and a Bench of smaller strength cannot dilute, circumvent or disregard the ratio of a larger one. The judgment also noted that conviction rates under the UAPA are low, with national rates ranging from about two to six per cent in the five years from 2019 to 2023, according to the figures cited by the Court. Four days later, in Tasleem Ahmed v. State, Justices Aravind Kumar and P.B. Varale heard the bail pleas of Tasleem Ahmed and Khalid Saifi, co-accused of Khalid and Imam in the same case, who relied on Gulfisha Fatima's own reasoning. The Bench defended Gulfisha Fatima, said Najeeb is “neither a charter for indefinite incarceration under the cover of Section 43D(5), nor a mathematical command” that time alone must produce bail, and sent the question to the Chief Justice for a larger Bench.
The order's language on judicial discipline is the part that the Delhi High Court took to heart. “Judgments of this Court are not to be answered by counter-observations from another Bench of equal strength,” the Bench said. “A doubt expressed in emphatic terms is still a doubt; it is not a declaration of law.” The Delhi Police, represented by Additional Solicitor General S.V. Raju, had itself asked for a larger Bench on the perceived conflict. The Bench then released Tasleem Ahmed and Khalid Saifi for six months, saying they should not suffer continued incarceration merely because an important question of law had arisen.
Seen against that order, the High Court's ruling follows from the Supreme Court's own logic. Andrabi's reservations did not themselves overrule Gulfisha Fatima; they exposed a conflict between coordinate Benches that the Tasleem Ahmed Bench then referred for authoritative resolution. The January judgment was also not merely a general statement. It imposed a specific condition on these two accused, and no High Court can alter a condition imposed by the Supreme Court in the same case. The High Court also rejected the three developments relied upon as changed circumstances: the Supreme Court's reconsideration of Gulfisha Fatima, the interim bail given to the co-accused, and the passage of six more months. It held that the co-accused had different roles, which is what Gulfisha Fatima itself said.
What the ruling does not answer is the question the Supreme Court has now referred to a larger Bench. The Tasleem Ahmed bench framed it as how Article 21 applies in a field where Parliament has deliberately restricted bail, and said plainly that Article 21 “undoubtedly” survives Section 43D(5). Both camps accept that. They differ in method. Najeeb, as Andrabi reads it, makes long custody without a realistic trial the point at which the statutory bar yields. Gulfisha Fatima makes it one of several factors to be weighed against the accused. One critique published on LiveLaw argues that this treats Section 43D(5) as an exception to the Constitution and notes that the trial had not begun after five years in custody. The larger Bench will have to say whether delay is a trigger the State must answer or a circumstance that a court may weigh and set aside.
The difficulty is timing. The principle in the 22 May order that a person should not remain in custody merely because the law has become uncertain has so far been applied only by the Supreme Court, and only to two of the accused. For Khalid and Imam, the Supreme Court's own condition stands between them and the High Court. They can ask the Supreme Court to revisit it, or wait for the one-year window to open on 5 January 2027, or for the protected witnesses to finish. As of 1 October, no publicly available order shows that the larger Bench has been constituted or that a hearing date has been fixed for the reference. If it is not heard before the gate opens, the question the Court called important enough to refer will not have been answered for the two people whose case produced it.
The High Court avoided a harder question by resting on the condition fixed for these two accused rather than on the general principle about delay. Other courts will not have that cover. Andrabi says that High Courts, too, must not dilute Najeeb. The Tasleem Ahmed order says Gulfisha Fatima applied Najeeb correctly. A High Court hearing a UAPA bail plea from an accused with no such condition against him now faces a more difficult question: how should it apply Najeeb in light of Gulfisha Fatima and Andrabi while the reference remains pending? One court may grant bail after a long delay and call it Najeeb. Another may refuse and call it Gulfisha Fatima. Both could say they are following the Supreme Court, and neither could be called wrong until the larger Bench decides.
The remedy the Supreme Court gave itself in May was a reference. Its logic works only if the reference is heard quickly, because the cost of waiting is borne by people in custody. That puts a duty on the Court's administrative side that its judgments cannot discharge. The Bench that urged a permanent five-judge Bench for constitutional questions in the Election Commissioners case made the same point about delay in a different setting. A UAPA bail reference is a smaller thing than a constitutional reference, but it has a person's liberty attached to it, and the period it will take is a fact that every court below has to work around.
The larger Bench will also have to decide something that the two-judge Benches avoided. Section 43D(5) was written by Parliament, and Watali reads it strictly, while Najeeb reads Article 21 into it. The larger Bench could settle both: clarify how trial courts should approach the prosecution's material at the bail stage, and clarify when prolonged incarceration and delay require the State to justify continued custody. Until then, courts below are left with two readings of the same precedent and a reference that has not yet been heard.
Author is an Advocate practicing at Delhi. Views are personal.