The Supreme Court on Friday referred to a larger Bench the question concerning the grant of bail under the Unlawful Activities (Prevention) Act (UAPA), seeking to resolve the apparent divergence in judicial opinion on the application of the landmark K.A. Najeeb precedent in cases involving prolonged incarceration and delayed trials.
Simultaneously, the Court granted interim bail for six months to Tasleem Ahmed and Khalid Saifi in the Delhi riots larger conspiracy case, subject to stringent conditions, including a prohibition on interacting with the media or making any public statements concerning the proceedings.
The order was passed by a Bench comprising Justice Aravind Kumar and Justice P.B. Varale while hearing the bail pleas moved by Ahmed and Saifi.
The reference arose in the backdrop of the recent judgment in Syed Iftikhar Andrabi v. National Investigation Agency, delivered earlier this week by a Bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan. That ruling expressed reservations regarding earlier decisions in Gulfisha Fatima and Gurwinder Singh, authored by Justice Aravind Kumar, observing that those judgments appeared to adopt a comparatively restrictive approach to bail under the UAPA and were arguably inconsistent with the principles enunciated in K.A. Najeeb.
In its reference order, however, the Bench clarified that K.A. Najeeb did not lay down an inflexible or mechanical formula requiring bail solely on account of delay in trial. The Court observed that the decision in Gulfisha Fatima had interpreted K.A. Najeeb as embodying a constitutional safeguard that necessitates a nuanced, individualised assessment of the specific role attributed to each accused, rather than an automatic entitlement to bail based merely on prolonged detention.
The Bench noted that in Gulfisha Fatima, bail had been granted to five accused persons while being denied to Umar Khalid and Sharjeel Imam after a detailed evaluation of their respective roles. It further observed that Ahmed and Saifi themselves had relied upon the Gulfisha Fatima ruling in support of their present pleas, thereby indicating that the judgment did not dilute the principles laid down in K.A. Najeeb.
Justice Kumar observed that differences of opinion between coordinate benches were neither unusual nor undesirable in the evolution of jurisprudence. However, he emphasised that judicial discipline demanded that such disagreements be resolved through a formal reference to a larger Bench rather than by coordinate benches making critical observations on decisions rendered by benches of equal strength.
The Court underscored that stability and institutional integrity within the judicial system require adherence to established principles of precedent and hierarchy. It held that if a coordinate Bench entertains doubts regarding another coordinate Bench’s interpretation of a binding larger Bench decision, the appropriate course would be to refer the matter to the Chief Justice of India for constitution of a larger Bench.
At the same time, the Bench cautioned against adopting absolutist positions while dealing with bail under anti-terror legislation. The Court observed that treating prolonged incarceration alone as an automatic ground for bail in serious offences affecting national security could undermine legitimate security concerns. Conversely, it warned that a rigid and mechanical application of statutory restrictions under Section 43D(5) of the UAPA, without due regard to constitutional guarantees under Article 21, could result in grave infringement of personal liberty.
Observing that authoritative clarification was necessary to ensure consistency and doctrinal coherence in the application of K.A. Najeeb, the Bench directed that the matter be placed before the Chief Justice of India for constitution of an appropriate larger Bench to settle the law governing bail under the UAPA.
During the course of the hearing, Additional Solicitor General S.V. Raju, appearing for the Delhi Police, contended that the ruling in Andrabi did not correctly state the law governing bail under statutes prescribing stringent twin conditions for release. He argued that prolonged incarceration, by itself, could not constitute a sufficient ground for bail under the UAPA.
In Andrabi, however, Justice Ujjal Bhuyan had reiterated that the principle of “bail is the rule” continues to apply even in UAPA cases and emphasised that benches of lesser or equal strength remain bound by decisions of larger benches unless the matter is formally referred for reconsideration.
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