Samridh Chaturvedi is a JURIST correspondent and a third-year law student at the School of Law, Christ (Deemed to be University) where he covers legal, policy, and human rights developments in India.
On May 22, 2026, a two-judge bench of the Supreme Court of India, comprising Justices Aravind Kumar and PB Varale, referred a set of legal questions to a larger bench regarding when bail can be granted in cases registered under India’s anti-terror law, the Unlawful Activities (Prevention) Act (UAPA). This reference arose directly from the case of Umar Khalid, a former student activist from Jawaharlal Nehru University, who has been held in Delhi’s Tihar jail without trial since his arrest in September 2020. Now, nearly six years later, he remains in custody. The same bench also granted interim bail for six months to two other accused in the same matter, Tasleem Ahmed and Khalid Saifi, both of whom were jailed in connection with the alleged conspiracy behind the February 2020 communal riots in northeast Delhi. A reference like this to a larger bench sets up a defining judgment on how Indian courts must balance a statute that makes bail extremely hard to access with the constitutional right to personal liberty.
In February 2020, the riots in northeast Delhi left 53 people dead, and more than 700 injured, which is something people still talk about in an unsettled way. They happened amid protests against the Citizenship (Amendment) Act of 2019 that were actively occurring across the country. Delhi Police said the violence was not spontaneous, but rather the outcome of an organised conspiracy, and then they charged Khalid, Sharjeel Imam, and a few other activists along with students, under the UAPA. Khalid was taken into custody on September 13, 2020. Since then, his bail attempts keep getting knocked back, first by the trial court, then by the Delhi High Court, and most recently, by the Supreme Court itself. In a January 5, 2026 judgment, a bench led by Justice Aravind Kumar, said there was a prima facie case against Khalid, and denied the relief he sought. At the same time, the court granted bail to five other co-accused in the very same proceedings.
To understand why the Supreme Court has now punted this to a larger bench, it helps to know what makes bail so difficult to secure under UAPA. In regular criminal law, the baseline idea is that bail should be easily available unless there is a specific reason to deny it, but UAPA, especially under Section 43D(5), sets a much steeper bar. Here, the court has to say no to bail if it forms an opinion, after going through the case diary and the report of the public prosecutor, that there are “reasonable grounds” to believe the accusation is prima facie true. That’s a tougher yardstick than what you typically see in routine criminal matters, and it has, in practice, kept many accused persons incarcerated for years, sometimes all the way through the trial, in UAPA cases.
In 2021, a three-judge bench of the Supreme Court in Union of India v. KA Najeeb kind of introduced a major limit to this severe standard. The court ruled that when pre-trial detention drags on, and the trial still isn’t wrapping up within a reasonable time, then bail can be granted in UAPA matters—even though the Section 43D(5) threshold is otherwise not met. The logic was that Article 21 of the Constitution, which shields every person’s right to life and personal liberty, cannot be kept in indefinite suspension, just like that. A problem arose later when two-judge benches began to pull the principle in different directions, meaning how widely it should be applied. Then, in January 2026, the judgment refusing bail to Khalid and Imam was authored by Justice Aravind Kumar’s bench, and it basically didn’t want to apply the “delay as bail ground” idea from the KA Najeeb case in a mechanical way. It said the approach has to be contextual, not treated like a fixed automatic lever. After that, a few days later, another two-judge bench, comprising Justices BV Nagarathna and Ujjal Bhuyan, granted bail to a different UAPA accused, Syed Iftikhar Andrabi, who had been in custody for more than six years. While doing so, they publicly criticised the January decision in Khalid’s case, saying it had improperly read down the binding KA Najeeb case precedent, and that the rule “bail is the rule, jail is the exception” still must hold even in UAPA matters. At this point, two benches of equal strength had staked out opposite tracks, and under normal Indian judicial practice, a coordinate bench can’t simply overrule another bench of the same strength. That’s why the issue was sent for a larger bench reference, to settle the conflict more authoritatively.
What stands out is the irony in how these cases have been handled. The bench that referred the matter to a larger bench on May 22 was led by Justice Aravind Kumar—the same judge who authored both the January 2026 judgment denying bail to Khalid and Imam and a 2024 UAPA ruling criticized by the Nagarathna bench. During the May 22 hearing, Additional Solicitor General SV Raju, representing the state, defended the January judgment and opposed any blanket bail rule for terror cases. The referring bench acknowledged some merit in the government’s argument that the January ruling did not dismiss KA Najeeb outright but resisted a rigid, mechanical application of its principles. Still, it could not gloss over the institutional reality: one Supreme Court bench had openly questioned the reasoning of another bench of equal strength, and this ripple of uncertainty is already affecting how lower courts across the country handle UAPA bail applications.
The stakes of the larger bench’s eventual ruling spread well beyond Umar Khalid’s own case, important as it is. Courts have applied the UAPA in a broad range of matters over the last decade, beyond people accused of violence or terrorism. It has been weaponized against journalists, human rights defenders, scholars, and political activists. The UN Working Group on Arbitrary Detention and several international human rights organizations have previously called out India’s use of UAPA as clashing with international benchmarks for pre-trial confinement. If the larger bench affirms a reading of KA Najeeb that treats a drawn-out trial delay as a real constitutional signal for bail within UAPA proceedings, it could bring tangible relief to hundreds of undertrial prisoners who have spent years in custody while their cases have not started or have only barely moved. And if it instead supports a tight, case-by-case interpretation, then for many of these individuals, there is not much road left other than waiting for their trials to end, which could take years.
As an observer, I keep coming back to what it means when the law, sort of recognizes a right but then doesn’t really give a mechanism to enforce it. The Supreme Court, in KA Najeeb, said in 2021 that indefinite incarceration under UAPA cannot be justified. Then five years on, Umar Khalid is still in Tihar jail, and somehow the court is still sorting out what those words actually ask for, in day to day practice. The legal conflict between the benches is not just theoretical, it’s real and it should be resolved, carefully too. The larger bench should not rush into a mechanical rule, because that kind of shortcut could be used both ways, depending on how people decide to frame things. But this doctrinal back and forth also needs to be weighed against the lived reality it creates: people stuck in custody for years, facing accusations that haven’t been tested at trial, in a system where even judges can’t agree on what the law demands. That lived reality should matter when the larger bench formulates its answer—not just as an afterthought but as something central.
The matter has now been placed before the Chief Justice of India to constitute a bench of appropriate strength. The referring bench clarified that its order does not dilute the authority in KA Najeeb, and granted Tasleem Ahmed and Khalid Saifi interim bail for six months pending the larger bench’s ruling, i.e., a measure of relief that Khalid and Imam, still awaiting their own bail, do not yet share. Legal observers and civil liberties groups will be watching closely to see which judges are assigned to the larger bench, what questions they frame, and whether Khalid’s own bail application is heard as part of those consolidated proceedings or separately. After nearly six years in custody without a trial verdict, the pace of this process is not merely procedural, but a question of justice.
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