After benches differ on UAPA bail, SC refers question to larger bench

NEW DELHI: After two benches of the Supreme Court differed over whether delay in trial can justify bail for those accused under UAPA, the apex court has now referred the issue to a large bench for authoritative pronouncement.

A bench of Justices Aravind Kumar and P B Varale said this while taking exception to remarks made by a bench of Justices B V Nagarathna and Ujjal Bhuyan criticising them for not giving bail to Umar Khalid and Sharjeel Imam. The two were arrested under UAPA for allegedly inciting 2020 Delhi communal riots to force the govt to roll back the amendments to the CAA.

“Judgments of this Court are not to be answered by counter-observations from another Bench of equal strength,” said Justices Kumar and Varale as they went on to explain their decision to decline bail to Khalid and Imam in Jan.

SC: Bench of equal strength cannot alter prevailing law

They had drawn criticism from Justices Nagarathna and Bhuyyan who held that refusal of bail to Khalid and Imam contradicted the court’s order in Najeeb case where a three-judge bench had held that tough conditions laid down under UAPA for bail would “melt away” if there was a delay in the trial of the accused.

Taking issue with the observations passed by Justices Nagarathna and Bhuyyan, a bench of Kumar and Varale, said, “A coordinate Bench cannot, by strong observations, effectively unsettle the ratio of an earlier coordinate Bench while continuing to sit in equal strength”.

“...A Bench of equal strength cannot achieve, by language of reservation, what it cannot achieve by declaration of law. If the earlier view is thought to be inconsistent with a larger Bench decision, the proper course is reference. That course protects not merely the judgment doubted, but the authority of this Court itself. ...We, therefore, consider it our duty not to add another competing formulation to the field, but to place the perceived conflict before a Bench of appropriate strength so that the law may speak with the clarity and authority expected of this Court,” it said.

It was Justice Kumar who penned the judgment in Khalid case. The controversy is on interpretation of the 2021 Najeeb case verdict. A division bench of Justices Kumar and Anjaria, while rejecting the bail plea of Khalid, said “the jurisprudence of this Court” doesn’t accept the idea that a mere delay can override a law made by Parliament to deal with specific serious offences. Criticising this reasoning, Justices Nagarathna and Bhuyyan said the Najeeb order, which was law of the land, was not followed in Khalid case.

Justices Kumar and Varale, however, rejected the criticism on Friday. While giving bail to two other accused in Delhi riots case, the court argued that the three-judge bench order in Najeeb case would not impact all the UAPA accused the same way even if they all had been behind bars for a long time.

It said that Najeeb is an authoritative pronouncement, which preserves the constitutional force of Article 21, while at the same time recognising the legislative policy underlying special statutes such as the UAPA.

The court said that disagreement between coordinate benches is neither unusual nor undesirable but there is a way to resolve it by referring to larger bench and the matter cannot be left at the stage of criticism.