In granting bail to a Kashmiri man in an alleged narco-terror case, the Supreme Court on Monday underlined a plurality of judicial approaches in the top court, with different benches taking distinct perspectives on the fraught question of whether bail restrictions under the stringent Unlawful Activities (Prevention) Act (UAPA) can prevail over constitutional safeguards.

“If the smaller benches are unable to agree with the ratio laid down by the larger bench, then the proper and the only course of action open is to make a reference to the Hon’ble Chief Justice of India for placing the matter for consideration by a still larger bench. Being in a combination of two Judges, we are bound by the ratio laid down by the three-Judge bench in K A Najeeb. We say this and no more,” the bench comprising Justices B V Nagarathna and Ujjal Bhuyan said in the 102-page ruling.

The court’s concern stems from the line of precedents it examined on whether the rigours of Section 43(D)(5) of the UAPA — which restricts the grant of bail — would “melt down” where prolonged incarceration and delayed trial lead to a violation of Article 21 of the Constitution.

The 2021 ruling by a three-judge bench headed by then Chief Justice of India N V Ramana establishes the “good law” to be followed on this issue. The court had said that an accused undertrial suffering long incarceration with no end in sight to the criminal trial must be enlarged on bail. The court had then examined the most consequential ruling on bail in UAPA cases — the 2019 ruling in NIA v. Zahoor Ahmed Shah Watali. A two-judge bench in the Watali case had held that courts must accept the state’s case without examining its merits while considering bail pleas under the UAPA.

“The caution of Najeeb is that continued incarceration cannot go unabated by a mere discharge by the State of the prima facie standard under Section 43-D(5),” the Supreme Court said on Monday, underlining that the Najeeb ruling would prevail over the Watali ruling. Apart from the structural reasoning, procedurally too, Najeeb is a later judgment by a larger bench.

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Judicial discipline and certainty demand that benches of smaller strength are mindful of the decisions rendered by larger benches and are bound to follow the same. However, in a polyvocal court, where multiple benches of two and three judges comprise the Supreme Court, these norms are often diluted.

In a 2024 ruling in Gurwinder Singh v. State of Punjab, a two-judge bench cautioned against “mechanical” invocation of delay to seek bail, suggesting bail should only be considered if it also satisfies the test under Section 43(D)(5) of UAPA.

In January 2026, another two-judge bench also sidestepped the Najeeb precedent, holding that the accused in the Northeast Delhi riots case had not “crossed the constitutional threshold” of delay to seek bail.