The Unlawful Activities (Prevention) Act (UAPA), enacted in 1967, is India’s primary anti-terror law. Section 43-D(5) of the Act imposes strict conditions on the grant of bail. It states that an accused shall not be released on bail if the court, after examining the case diary or police report, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This creates a reverse burden, making bail extremely difficult compared to regular criminal cases.

The National Investigation Agency (NIA) is India’s premier counter-terror law enforcement agency. It was established in 2008 following the Mumbai terror attacks (26/11) under the National Investigation Agency Act. Headquartered in New Delhi, the NIA is empowered to investigate terror-related crimes across states without special permission from state governments, making it a highly centralized federal agency.

In Gurwinder Singh v. State of Punjab (2024) and Gulfisha Fatima v. State (2026), two-judge benches of the Supreme Court took a restrictive approach to bail under UAPA. In Gurwinder Singh, the Court held that UAPA’s Section 43-D(5) bail bar must be evaluated first, and general factors like prolonged custody can only be considered if the prima facie test is cleared. In Gulfisha Fatima (Delhi Riots case), the Court denied bail to Umar Khalid and Sharjeel Imam, ruling that K.A. Najeeb’s precedent of prolonged custody did not create an absolute right to bail. The Andrabi judgment disapproved of this reasoning.

In Union of India v. K.A. Najeeb (2021), a three-judge bench of the Supreme Court held that statutory restrictions under Section 43-D(5) of the UAPA do not override the powers of constitutional courts to grant bail in cases of violation of Article 21 (right to a speedy trial). The Court ruled that if an undertrial has undergone a substantial period of imprisonment and the trial is unlikely to finish in a reasonable time, the rigours of Section 43-D(5) would melt down, allowing the court to grant bail.

Umar Khalid (former JNU student leader) and Sharjeel Imam (academic and activist) were arrested in 2020 under the UAPA for their alleged roles in a ‘larger conspiracy’ related to the February 2020 Delhi Riots. Both have spent over five years in pre-trial detention. Despite multiple bail applications, courts repeatedly denied them relief, citing the stringent prima facie test under UAPA Section 43-D(5). In the Gulfisha Fatima judgment (early 2026), the Supreme Court denied them bail and barred them from renewing their bail applications for a year, a move that the Andrabi ruling later disapproved of.

The presumption of innocence is a fundamental tenet of criminal jurisprudence, meaning an accused is considered innocent until proven guilty. However, in anti-terror laws like the UAPA, Section 43-D(5) reverses this by making bail the exception, requiring the accused to prove they are prima facie innocent to get bail. A day after the Andrabi judgment, Additional Solicitor General S.V. Raju argued before the Supreme Court that under the UAPA, the presumption of innocence of the accused takes a backseat due to this mandatory statutory bar. This highlighted the deep conflict between executive prosecution and constitutional courts protecting fundamental rights.