What are the rules governing bail in India? SC reiterates ‘bail is the rule, jail the exception’ even in UAPA cases

Reaffirming the constitutional importance of personal liberty, the Supreme Court of India on Monday (May 18) ruled that “bail is the rule and jail is the exception” even in cases filed under the stringent Unlawful Activities (Prevention) Act (UAPA), while expressing serious reservations about an earlier judgment denying bail to activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case. A bench comprising Justices B V Nagarathna and Ujjal Bhuyan made the observations while granting bail to Syed Iftikhar Andrabi, a Jammu and Kashmir resident who has been in custody since June 2020 in a narco-terrorism case investigated by the National Investigation Agency.

The bench stressed that the principle favouring bail stems directly from the constitutional guarantee of personal liberty under Article 21 and cannot be overridden by legislation. “It is clear beyond doubt that the preference for bail, or the often invoked principle ‘bail is the rule and jail is the exception’ flows from the constitutional primacy of personal liberty under Article 21 and, therefore, cannot be displaced by legislation,” the court observed.

The judges held that even under the UAPA, the right to a speedy trial remains paramount and cannot be defeated merely because the accused has been booked under a stringent anti-terror law. Referring to conviction data under the UAPA between 2019 and 2023, the bench noted that conviction rates ranged between 2 per cent and 6 per cent, indicating that acquittals occurred in 94 per cent to 98 per cent of cases nationwide.

The court further clarified that Section 43-D(5) of the UAPA, which imposes strict conditions on the grant of bail, remains subordinate to Articles 21 and 22 of the Constitution. “The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution,” the bench said.

Rules governing bail in India

Under Indian law, bail is governed primarily by the Code of Criminal Procedure (CrPC), constitutional protections, and special statutes such as the UAPA. Courts generally consider several factors while deciding bail applications:

• The nature and gravity of the offence
• The possibility of the accused fleeing justice
• Chances of tampering with evidence or influencing witnesses
• The accused’s criminal record
• The length of custody and the delay in trial
• The constitutional right to personal liberty under Article 21

Indian courts have repeatedly held that pre-trial detention should not become punitive and that an accused is presumed innocent until proven guilty.

In ordinary criminal cases, bail is commonly granted unless there are compelling reasons to deny it. However, laws such as the UAPA impose additional restrictions, particularly under Section 43-D(5), which limits courts from granting bail if there appears to be a prima facie case against the accused.

Despite these restrictions, the SC has consistently maintained that prolonged incarceration without trial violates constitutional protections. In the landmark KA Najeeb judgment of 2021, the apex court ruled that constitutional courts can grant bail where trials are unlikely to conclude within a reasonable time.

Court questions earlier ruling in Gulfisha Fatima case

The bench also cast doubt on the reasoning adopted in the Gulfisha Fatima judgment concerning bail pleas linked to the Delhi riots conspiracy case. While several accused individuals secured bail in related cases, another Supreme Court bench, on January 5, 2026, refused bail to Umar Khalid and Sharjeel Imam. Their review plea was subsequently dismissed on April 16, 2026.

Writing for the bench, Justice Bhuyan said the court had “serious reservations” about several aspects of the Gulfisha Fatima ruling, including its decision to effectively prevent the two activists from seeking bail for a year. “We have serious reservations on various aspects of the judgment in Gulfisha Fatima, including foreclosing the right of the two appellants to seek bail for a period of one year,” Justice Bhuyan wrote.

The court criticised the interpretation that the K A Najeeb ruling was only a narrow exception to Section 43-D(5) of the UAPA.