The Delhi Police has requested the Supreme Court to constitute a larger bench in view of the recent disagreement between two separate two-member benches of the Supreme Court over the criteria for granting bail under the Unlawful Activities (Prevention) Act (UAPA). The move came after a division bench of the Supreme Court on Monday, comprising Justice Ujjal Bhuiyan and Justice BV Nagaratne, strongly criticized the earlier verdict denying bail to former Jawaharlal Nehru University student leader Umar Khalid.
A bench of Justice Bhuiyan on Monday granted bail to Syed Iftikhar Andrabi, who is detained in a narco-terrorism case being investigated by the National Investigation Agency (NIA). The bench said the two-member bench, which denied bail in Umar Khalid’s case, ignored the mandatory principle of “bail is the rule and jail is the exception” laid down by the three-member bench in the 2021 KA Najeeb case. Justice Bhuiyan made it clear that a lesser bench can never undermine or ignore the principles or legal precedents laid down by a larger bench.
In January this year, a bench of Justice Arvind Kumar and Justice NV Anjaria rejected the bail plea of Umar Khalid and Sarjeel Imam in the 2020 Delhi riots conspiracy case. At the time, citing the 2019 judgment in the Zahoor Watali case, the bench observed that delay in trial cannot be used as a means of obtaining automatic bail under a draconian law like the UAPA. The judgment revealed that if the allegations against the accused are found to be true in the preliminary investigation and their central role is revealed, the court can refuse bail without a detailed evaluation of the evidence.
The UAPA Act, enacted in 1967 to protect India’s sovereignty and integrity, was tightened after the 2008 Mumbai terror attacks. Under section 43D(5) inserted by this amendment, bail cannot be granted if the court prima facie finds reasonable grounds to believe that the allegations are true. But, subsequently in the Angela Chantakke case 2016 and the KA Najib case 2021, the Supreme Court held that inordinate delays in trial and long imprisonment violate fundamental rights under Article 21 of the Constitution, which allows the accused to get bail even under draconian laws like the UAPA.
