Why two Supreme Court benches hold conflicting views on Umar Khalid's bail

On May 19, a Delhi court refused Umar Khalid even a fortnight of interim bail. A day earlier, the Supreme Court had declared that under the Unlawful Activities (Prevention) Act (UAPA), India’s principal anti-terror law, “bail is the rule and jail is the exception”. The two-judge bench of Justices B.V. Nagarathna and Ujjal Bhuyan had gone further still: it openly faulted an earlier Supreme Court order that rejected Khalid’s bail, and rested its reasoning on a 2021 precedent—Union of India vs K.A. Najeeb. Read Full Story Confused? The Delhi police are too; so confused that they have asked the Supreme Court to refer the entire question to a larger bench. Two sets of the Supreme Court’s own judges of equal rank are saying opposite things, and the police would like to know which is the law. To understand how the country’s apex court ended up arguing with itself, let’s begin with the man at the centre of it all: Khalid. In February 2020, north-east Delhi burned during protests against the Citizenship (Amendment) Act, 2019, and the proposed Register of Citizens (NRC). Fifty-three people died and more than 700 were injured. That September, the Delhi police arrested Khalid, then 33, in the “larger conspiracy” case, booking him under UAPA and the penal code as one of the alleged masterminds of the violence. Khalid has been in Tihar Jail ever since. The trial, in any meaningful sense, has barely begun. His record on bail is a study in near-permanence. The trial court refused him regular bail. On October 18, 2022, the Delhi High Court did too, holding that he was in “constant touch” with the co-accused, that the allegations were “prima facie” true, and that his alleged acts qualified, on the face of it, as a “terrorist act”. Khalid took the matter to the Supreme Court in 2023, where it was deferred more than 10 times, one judge recused himself, and Khalid eventually withdrew the plea in February 2024, citing changed circumstances, to try his luck again at the trial court. Khalid has been let out only in brief, conditional bursts—a week in 2022 for his sister’s wedding (with a gag order barring him from speaking to the media), again in 2024, and once more in December 2025. He surrendered on time on each occasion. Then, on January 5 this year, a Supreme Court bench of Justices Aravind Kumar and N.V. Anjaria refused Khalid regular bail once more, finding that he met the statutory threshold for denial under UAPA on account of his alleged role in the “planning, mobilisation and strategic direction” of the riots. The same bench granted bail to five co-accused, including Gulfisha Fatima. Khalid was told he could renew his plea after a year. By then his case had become the example everyone used when arguing about UAPA bail. At the Jaipur Literature Festival in mid-January, former chief justice of India D.Y. Chandrachud, pressed on Khalid by name, said that bail before conviction is “a matter of right”, that national security cannot be a blanket reason to deny it, and that “if an expeditious trial is not possible, then bail should be the rule and not the exception”. The reason UAPA bail is so vexed lies in one provision: Section 43D(5). In ordinary criminal law, an accused is presumed innocent and bail is, broadly, the default. The UAPA reverses that. If a court, reading the case diary and chargesheet, finds reasonable grounds to believe the accusation is prima facie true, it must refuse bail. The accused is, in effect, asked to dislodge the prosecution’s case before the trial has even tested it—a near-impossibility at the bail stage. Two Supreme Court judgments have pulled this clause in different directions. In NIA (Investigation Agency) vs Zahoor Ahmed Shah Watali (2019), the court read 43D (5) strictly: a judge must take the prosecution’s material largely at face value and may not weigh its evidentiary worth. After Watali, bail under the UAPA became something close to unobtainable. Then came K.A. Najeeb. On February 1, 2021, a three-judge bench held that even where 43D (5) applies, prolonged incarceration, coupled with an indefinitely delayed trial, is an “independent” ground for bail, drawn not from the statute but from Article 21 of the Constitution—the right to life and to a speedy trial. The restrictive clause, the court said, limits a court’s power; it does not extinguish the constitutional duty to protect liberty. The two rulings are not strictly contradictory: Watali is the statutory lens, Najeeb the constitutional one. The trouble is which lens a judge chooses to look through. The January 2026 bench (Justices Kumar and Anjaria) looked through the Watali lens, applying the strict statutory bar to Khalid and another accused Sharjeel Imam. Four months later, the May 18 bench looked through Najeeb. Granting bail to Syed Iftikhar Andrabi, a Jammu and Kashmir man who had spent nearly six years in custody in an NIA narco-terror case without trial, Justices Nagarathna and Bhuyan reaffirmed that bail is the rule even under U