Supreme Court refers UAPA bail delay to larger bench, avoids remarks on Umar, Sharjeel case

New Delhi: The Supreme Court on Friday referred to a larger bench the questions recently raised over the correctness of an earlier judgment denying bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case.

A bench of Justices Aravind Kumar and Prasanna B Varale made the reference while granting interim bail to two other accused persons, Tasleem Ahmed and Khalid Saifi, in the Delhi riots case. 

"A coordinate bench cannot by strong observation, effectively unsettle the ratio of an earlier coordinate bench while continuing to sit in equal strength," the bench said, with regard to the recent reservation expressed by a different bench over rejection of bail to Umar Khalid and Sharjeel Imam.

In the reference order, the bench said that K A Najeeb judgment by a three-judge bench was not a mathematical command to mechanically grant bail if there was a delay in trial in a UAPA case.

Justice Kumar observed that Gulfisha Fatima (Umar Khalid case) understood Najeeb as a principled safeguard and not as a mathematical formula.

“We do not propose to enter into adjudication of the correctness of the observation made by a coordinate bench. Judgments of this court are not to be answered by a counter-observation from another bench of equal strength. The discipline of precedent demands a higher institutional method,” the bench said.

The bench said that where a coordinate bench entertains reservations about the reasoning of an earlier coordinate bench particularly regarding the application of a binding three-judge bench decision, the proper course is well settled. 

"The matter must be placed before the CJI for the constitution of an appropriate bench,” the bench said.

The bench further observed that in Gulfisha Fatima, bail was granted to five accused, and was denied to two others (Umar Khalid and Sharjeel Imam), upon an individualised assessment of their roles.

Justice Kumar said, "We deem it necessary to observe that disagreement between coordinate benches by itself is neither unusual nor undesirable."

Justice Kumar said a bench of equal strength cannot achieve by language of reservation, what it cannot achieve by declaration of law.

The bench observed that referring the matter to a larger bench is the proper recourse in such situations, rather than just making critical observations.

Justice Kumar observed that if a coordinate bench has expressed reservation about the manner in which Najeeb was followed by another coordinate bench, the proper answer is not further reservation but authoritative resolution.

The bench also observed that an unqualified application of the proposition that delay will grant bail can have dangerous consequences in terrorism cases, when other material factors touching upon national security are not considered.

The bench said the matter would be placed before the CJI for the constitution of an appropriate bench to clarify or expound the position of law laid down in Najeeb, particularly against the backdrop of the rigour of Section 43D (5) of UAPA.

During the hearing, Additional Solicitor General S V Raju, representing Delhi Police, submitted that the recent ruling in Syed Iftikhar Andrabi does not lay down the correct position of law on bail under the UAPA.

The bench noted that there was a "perceived conflict" among different benches regarding the understanding of the 3-judge bench judgment in Union of India v KA Najeeb (2021). The 2021 judgment held that long incarceration can be a ground to grant bail in cases under the Unlawful Activities Prevention Act, regardless of the statutory rigours.

On May 18, a bench of Justices B V Nagarathna and Ujjal Bhuyan said that bail should be the rule even in UAPA cases and stressed that the right to a speedy trial cannot be defeated merely because an accused has been booked under this stringent anti-terror law. 

“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. The judgment in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5) justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with,” Justice Bhuyan wrote for the bench in the 102-page judgment. 

The bench had then said that judgments in Gulfisha Fatima offered a narrow reading of the Najeeb verdict and such reasoning amounts to hollowing out the constitutional course of the three-judge bench decision.

The bench had then granted bail to Syed Iftikhar Andrabi, J&K resident, who has been in custody since June 2020 in connection with a narco‑terrorism case registered by the National Investigation Agency (NIA).

Subsequently a request was made before the bench led by Justice Kumar for a reference to a larger bench in the context of this May 18 verdict.