GS Paper II: Polity and Governance  |  GS Paper IV: Ethics and Integrity Source: The Hindu, Indian Express

May 22, 2026: The Supreme Court granted bail to two 2020 Delhi riots accused and referred a key question to a larger bench: Can prolonged jail time override UAPA’s strict bail rules? This tests the balance between Article 21 (personal liberty) and national security.

1. What is UAPA and the bail problem?

UAPA (Unlawful Activities Prevention Act, 1967) — India’s main anti-terror law. Amended in 2004, 2008, and 2019.

Section 43D(5) — Court cannot grant bail if charges appear prima facie true. Makes jail the default, bail the exception — opposite of normal criminal law.

National Investigation Agency — Created in 2008 to investigate terror cases. Trials move very slowly in special NIA courts.

Real impact: Many 2020 Delhi riots accused have been in jail since 2020 without trial completion — over 6 years as undertrials, without being found guilty.

2. Why the larger bench referral?

Different Supreme Court benches gave conflicting answers on the same question:

• National Investigation Agency vs Watali (2019): Courts must accept the prosecution’s version unless it is clearly and obviously false — this made bail nearly impossible under UAPA.
• Union of India vs KA Najeeb (2021) — Key precedent: A bench of 3 judges said: prolonged detention combined with a delayed trial means bail must be granted, even if Section 43D(5) bars it. Article 21 overrides the statutory bar.
• Gurwinder Singh vs State of Punjab (2024): Warned against mechanical use of the delay argument. Each case must be assessed on its own facts — passage of time alone is not enough for bail.
• Justice Nagarathna bench (May 18, 2026): Said “bail is the rule, jail is the exception — even under UAPA.” Cited National Crime Records Bureau data showing very low UAPA conviction rates nationally.

The problem: All are coordinate benches (equal strength). One cannot overrule another. Only a larger bench can settle the conflict. The Chief Justice of India — as Master of Roster — will constitute this bench.

3. Constitutional dimensions

• Article 21 — Right to life and personal liberty. Includes the right to speedy trial as held in Hussainara Khatoon vs State of Bihar (1979).
• Article 22 — Protection against arbitrary arrest and detention; provides basic safeguards for arrested persons.
• State’s argument: National security is a compelling interest. Section 43D(5) does not violate Article 21.
• Accused’s argument: The process has become the punishment. Years in jail without conviction is itself a violation of Article 21.

National Crime Records Bureau data — Over 75% of India’s prison population are undertrials. Conviction rates under UAPA are very low — meaning most accused are eventually acquitted after years in jail.

UPSC Value Box

Term or Law or Case	What it means and why it matters
Section 43D(5) of UAPA	The bail blocking provision — no bail if charges appear prima facie true; makes prolonged detention the norm
KA Najeeb (2021)	Supreme Court held that prolonged detention without trial end violates Article 21 — bail must be granted despite UAPA
Coordinate bench	Two benches with the same number of judges; one cannot overrule the judgment of the other
Larger bench	A bench with more judges that can settle conflicts between coordinate benches and lay down binding law
Master of Roster	The Chief Justice of India’s exclusive power to decide which judges will hear which case
Article 21	Fundamental right to life, personal liberty, and speedy trial — cannot be suspended indefinitely
National Investigation Agency	Central agency for terror cases, set up under the National Investigation Agency Act, 2008

4. Way forward

1. Larger bench clarity: Must set clear and fair criteria for when bail applies despite Section 43D(5) — ending confusion for all lower courts.
2. Fast-track trials: More National Investigation Agency courts to finish trials within one to two years, not five to seven years.
3. Time-bound review: Automatic bail review if trial is incomplete after two to three years in custody — as recommended by the Law Commission in its 248th Report (2015).
4. Careful use of UAPA: The law must be applied only in genuine terror cases — not to silence dissent, activists, or critics.

The larger bench must balance national security with personal liberty. When trials take years, detention without conviction itself becomes punishment — violating the constitutional promise of Article 21.

UPSC Mains Practice Qn — 15 Marks, 250 Words

Q.1. The Supreme Court’s referral of the UAPA bail question highlights the tension between national security and personal liberty. Examine this issue with reference to India’s undertrial crisis and suggest a way forward.

Structure

Introduction: Supreme Court’s May 2026 referral. Core conflict — Article 21 versus Section 43D(5) of UAPA.

Body — three clear parts:

1. Section 43D(5) bail bar and what KA Najeeb (2021) changed
2. Judicial conflict — coordinate bench rule, why a larger bench is needed
3. Undertrial crisis — National Crime Records Bureau data, low conviction rates, process as punishment

Way forward: Fast-track trials, time-bound bail review, judicious use of UAPA.

Must mention in your answer

Article 21 Section 43D(5) of UAPA KA Najeeb 2021 National Crime Records Bureau data Right to speedy trial Law Commission 248th Report

Conclusion: The larger bench must ensure that national security does not permanently override personal liberty — both are constitutional imperatives.