The Supreme Court on Friday (May 22, 2026) granted six months of interim bail to two accused in the 2020 Delhi riots case while referring to a larger Bench the question of whether prolonged incarceration and delay in trial can override the stringent bail curbs under anti-terror laws such as the Unlawful Activities (Prevention) Act, 1967 (UAPA). The court said the reference was necessary to ensure “parity, consistency and institutional fidelity” in the application of binding precedents by coordinate Benches.

The reference was made by a Bench of Justices Aravind Kumar and P. B. Varale during the hearing of bail pleas filed by 2020 Delhi riots accused Abdul Khalid Saifi and Tasleem Ahmad, challenging a September 2, 2025, order of the Delhi High Court denying them bail.

“Where a coordinate Bench entertains reservations about the reasoning of an earlier coordinate Bench, particularly on the application of a binding three-judge Bench decision, the proper course is well settled. The matter must ordinarily be placed before the Chief Justice of India (CJI) for the constitution of an appropriate Bench. A coordinate Bench cannot, by strong observations, effectively unsettle the ratio of an earlier coordinate Bench while continuing to sit in equal strength,” the Bench observed.

The reference came in response to the Delhi Police’s contention that a May 18 judgment delivered by a coordinate Bench – which had expressed “serious reservations” about the Justice Kumar-headed Bench’s January ruling refusing bail to activists Umar Khalid and Sharjeel Imam in the Delhi riots “larger conspiracy” case – had proceeded on a “blanket generalisation” of Supreme Court precedents.

‘Facts of each case’

During the proceedings, Additional Solicitor General S.V. Raju, appearing for the Delhi Police, told the Bench that the question of bail must turn on the facts and circumstances of each case.

“Latest (May 18) judgement says you don’t have to see the role, you don’t have to see the nature of the crime. So there is no categorisation…This can’t be done. This can’t be how it has to be applied. It has to be applied to the facts of each case. That’s what your Lordships have precisely done”, Mr. Raju submitted.

He contended that courts must strike a balance between the “interests of society and victims” and the “rights of the accused” while considering bail under terror statutes.

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“If you take the case of Ajmal Kasab, there are a large number of witnesses. Will you grant him bail, given that he has been in jail for 7 or 8 years? It can’t be done… Suppose if Hafiz Sayeed is brought from Pakistan and tried, and he is in jail for 5 years because there are a large number of witnesses (because) you have to collect evidence from abroad, will you release him on bail (saying) no, no 5 years (has passed)?” Mr. Raju asked.

‘Counter-observations’

The May 18 judgment, delivered by Justices B.V. Nagarathna and Ujjal Bhuyan, had underlined that the January 5 verdict failed to correctly apply the binding principles laid down by a larger three-judge Bench in Union of India v. K.A. Najeeb (2021) case, which held that prolonged incarceration and delay in trial can “melt down” the stringent bail embargo under Section 43D(5) of the UAPA. The provision restrains courts from extending bail where there are reasonable grounds to believe that the charges against the accused are “prima facie true”.

The Justice Kumar-led Bench on Friday (May 22, 2026) said it did not wish to examine “the correctness of the observations” made by the coordinate Bench since “counter-observations” would be dehors judicial discipline. However, it stressed that the “discipline of precedent” does not permit a coordinate Bench to express “reservations of a fundamental character” on the alleged misapplication of a larger Bench ruling without the matter first being placed before a Bench of appropriate strength to resolve the “perceived conflict”.

The court further observed that the reliance placed by the accused on its January ruling granting conditional bail to student activist Gulfisha Fatima and four other co-accused, while denying relief to Mr. Khalid and Mr. Imam after distinguishing their alleged roles, was “not without significance”.

“If [the ruling] had proceeded on the basis that Section 43D (5) eclipses Article 21, or that prolonged incarceration has no constitutional bearing in UAPA prosecutions, it could hardly have been invoked by accused persons seeking enlargement on bail. The very reliance placed upon it demonstrates that the said decision cannot be placed in a rigid or one-sided frame,” the Bench observed. 

The Bench cautioned that an “unqualified reading” of the proposition that mere passage of time may compel bail in every UAPA case could have “serious consequences”. Such an approach, it said, would leave courts with little room to examine factors such as the nature of the allegations, the centrality of the accused’s role, protection of witnesses, the risk of intimidation, possible reactivation of networks, whether delays were attributable to the accused, and broader concerns of public order and national security.

At the same time, the Bench acknowledged that an “equally unqualified insistence” on Section 43D(5), without regard to prolonged incarceration, would imperil the guarantee of personal liberty under Article 21 of the Constitution. This “perceived conflict”, it said, warranted consideration by a larger Bench.

The court, however, clarified that none of its observations was intended to “brittle down, dilute, read narrowly or detract from the authority” of the Najeeb precedent. “On the contrary, the present reference is necessitated because Najeeb deserves application with parity, consistency and institutional fidelity which a binding three-judge Bench commands,” it observed.

Accordingly, the Bench directed the Registry to place the papers before Chief Justice Surya Kant for the constitution of an appropriate Bench for an “authoritative resolution”.

Interim bail

The court, however, acknowledged that the accused “cannot be made to suffer” merely because an important question of law had arisen for authoritative settlement. Taking note of the fact that the accused had undergone “substantial incarceration” and that the trial was “not likely to conclude immediately”, the Bench proceeded to grant them interim bail.

“Without expressing any opinion on merits, and subject to stringent safeguards, we are inclined to grant interim bail to the appellants pending further orders”, the Bench said. 

The Bench directed the accused to furnish personal bonds of ₹2 lakh each along with two local sureties to the satisfaction of the trial court and ordered them to surrender their passports before the trial court. They were also instructed not to leave the national capital without prior permission of the trial court or change their place of residence without informing the investigating officer.

“The appellants shall not make any public statement, including through print, electronic or social media, touching upon the merits of the case, the evidence, the witnesses or the pending trial,” the Bench said, adding that any violation of the conditions would render them liable to cancellation of bail.