Four days after a Supreme Court bench raised questions over another bench’s January order rejecting bail to 2020 Delhi riots case accused Umar Khalid and Sharjeel Imam, a two-judge bench Friday referred to a larger bench the conflicting views on granting bail in anti-terror cases on the grounds of prolonged delay in trial.

“We do not propose to enter into any adjudication of the correctness of the observation made by the coordinate bench. Judgements of this court are not to be answered by counter observations from another bench of equal strength. The discipline of precedent demands a higher institutional method,” a bench comprising Justices Aravind Kumar and P B Varale said while referring the issue to the Chief Justice of India for constituting an appropriate bench.

The bench was hearing a bail plea by two accused in the 2020 Delhi riots case, Tasleem Ahmed and Khalid Saifi, charged under the stringent Unlawful Activities Prevention Act (UAPA), when Additional Solicitor General S V Raju and Advocate Rajat Nair, appearing for the Government of the National Capital Territory of Delhi, requested referring the issue to a larger bench. Raju brought up the May 18 ruling and said the logic of that ruling would have ensured bail to Mumbai terror attack convict Ajmal Kasab.

“If we take the case of Ajmal Kasab, there are a large number of witnesses. Will the court grant him bail, given that he has been in jail for seven or eight years? It can’t be done. Therefore, you have to examine the facts of each case. Suppose if (Lashkar-e-Taiba’s) Hafiz Saeed is brought from Pakistan and tried, and he is in jail for five years because there are a large number of witnesses (because) you have to collect evidence from abroad, will the court release him on bail (saying) no, no, five years (has passed)?” Raju contended.

On May 18, a two-judge bench comprising Justices B V Nagarathna and Ujjal Bhuyan granted bail to a resident of Jammu and Kashmir, Syed Ifthikar Andrabi, in custody since 2020 under the UAPA in a narco-terror case. The Court relied on a landmark 2021 three-judge bench precedent of the Supreme Court in Union Of India vs KA Najeeb which had held that violation of a fundamental right, like the right to speedy trial, can be a ground for the grant of bail even under a stringent law like the UAPA. The bench had then upheld the bail granted to an accused jailed since April 2015 for alleged involvement in chopping the hand of a Kerala professor in 2010. The bench, in doing so, expressed “reservations” over how the precedent was interpreted in the January ruling.

“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,” the bench had said. Section 43-D(5) of the UAPA is the provision that deals with bail and lays down a rather high bar for the grant of bail, making it virtually impossible for an accused to secure bail. A key exception to this is the ground of delay in the trial.

In January, the two-judge bench denying bail to Khalid and Imam and barring them from approaching the Court for bail for a year, considered the Najeeb precedent and said that it was not persuaded that “on the present record, continued detention has crossed the threshold of constitutional impermissibility so as to override the statutory embargo.” Incidentally, the January ruling was also delivered by a bench headed by Justice Kumar, who referred the same question to a larger bench.

When two or more benches of equal strength disagree on the interpretation of a precedent or take contrary legal positions, then the case is referred to a larger bench to “settle the law.”

In the reference, Justice Kumar said that “the controversy raises a broader question concerning the manner in which constitutional courts are to approach bail” in such cases.

“We are of the considered view that the issue requires consideration by an appropriate bench. This is necessary not merely for the present batch of matters but to settle the correct approach to bail under the special statutes where Article 21 (which guarantees the right to life and personal liberty), prolonged incarceration, and statutory restrictions intersect”, it said.

The bench said that the reference would be to “expound the position of law lay down in K A Najeeb particularly in the backdrop of rigour of section 43(D)5 which imposes restrictions (on the grant of bail) consciously and has received the assent of the Parliament, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 of the Constitution of India.”