Delhi Riots: Amid Divergent Views on Bail in UAPA Cases, SC to Refer Matter to Larger Bench
New Delhi: After the Supreme Court against the backdrop of Umar Khalid and Sharjeel Imam's imprisonment expressed diverging views on the grant of bail in protracted Unlawful Activities (Prevention) Act or UAPA proceedings, it said on Friday (May 22) that the matter must be examined by a larger bench.
Tasleem Ahmed and Abdul Khalid Saifi, two accused in the so-called Delhi riots ‘conspiracy’ case alongside Khalid and Imam, were also granted six months' interim bail by a bench of Justices Aravind Kumar and Prasanna Varale on Friday.
In January this year, a bench of Justices Kumar and N.V. Anjaria denied bail to Khalid and Imam in the contentious ‘conspiracy’ case while granting it to five other accused, holding that the duo was on a qualitatively different footing compared to the others.
But earlier this week another bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan remarked while hearing a different case that the January decision had ‘hollowed out’ the principle laid down in the apex court's Union of India v. K.A. Najeeb verdict, which they said normally obligates courts to grant bail to UAPA accused if they have been jailed for a long time and a speedy trial does not seem possible.
On Friday Justices Kumar and Varale said that because the disagreement between the coordinate benches “goes to the root of the legal principle applied”, it must be referred to a larger bench.
Disagreement between coordinate benches by itself is “neither unusual nor undesirable”, they said. “The law has often grown through reasoned difference … But where the doubt goes to the root of the legal principle applied, the matter cannot be left at the stage of criticism.”
Unless this deadlock is resolved by a larger bench, they added, “it only introduces uncertainty in the administration of justice”. The bench said it is necessary that the Chief Justice form a larger bench to hammer out the position of law in K.A. Najeeb.
They also said that the January decision “expressly recognised that … pre-trial incarceration cannot by mere passage of time assume the character of punishment”. It understood K.A. Najeeb as a “principled safeguard against unconscionable detention and not as a mathematical formula of universal application”.
Justices Nagarathna and Bhuyan had noted on Monday that K.A. Najeeb does not automatically entitle a UAPA accused to bail on account of delays, but that when they have been jailed for a long time and it is clear a timely trial is not possible “the courts would ordinarily be obligated to enlarge the accused on bail”.
The idea that K.A. Najeeb “does not create an automatic entitlement to bail on account of delay answers a proposition that Najeeb itself never advanced”, they said.
Following their remarks, the Delhi police – which is controlled by the Modi government – asked that the matter be referred to a larger bench.
Meanwhile on Friday, Justices Kumar and Varale granted six months' interim bail to Ahmed and Saifi, saying the bench “cannot lose sight of the fact that” the two have “undergone substantial incarceration”, “the trial is not likely to conclude immediately” and that a hashing out of the position of law in view of the accused's invocation of the January decision “may consume further time”.
Ahmed and Saifi were ordered released on interim bail on conditions including that they furnish a Rs 2 lakh bond, surrender their passports if any and not make public statements related to the case.
Much of the Delhi police's case in the ‘conspiracy’ matter rests on the accused activists' presence or participation in WhatsApp groups during the time of the nationwide protests against the Citizenship (Amendment) Act.
Their time in jail was marked by multiple appeals and subsequent postponements and rejections by courts, in what rights defenders worldwide have decried as a travesty of justice.
Questions continue to hover over the Delhi police's partisan role in investigating the violence that broke out in February 2020 and which killed more than 50 people. The police has characterised the accused persons' activities as a “regime change operation” whose agitation against the Act was a “radicalising catalyst camouflaged in the name of ‘peaceful protest’”.
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