SC refers matter of bail in UAPA cases to larger bench amid difference of opinion on Umar Khalid bail

Justice Aravind Kumar-led bench says K.A. Najeeb judgment, which held that constitutional courts can grant bail to UAPA accused facing prolonged incarceration, is 'not charter or mathematical command'.

File photo of Umar Khalid | ThePrint

New Delhi: A Supreme Court bench of Justices Aravind Kumar and P.B. Varale referred the matter of bail in UAPA cases involving prolonged incarceration to a larger bench, while not responding to another bench’s recent “serious observations” against the order that denied bail to Umar Khalid and Sharjeel Imam in the Delhi riots case.

On Monday, a two-judge bench of Justices B.V. Nagarathna and Ujjal Bhuyan criticised the January judgment refusing to release Umar Khalid and Sharjeel Imam on bail. It remarked that the decision was a departure from two previous SC rulings, which held that the accused under stringent UAPA and PMLA laws were entitled to bail in cases where there was unexplained, inordinate delay in the trial.

The two judgments were significant, since bail under both UAPA and PMLA is subject to stringent tests, requiring the accused facing trial to prima facie prove that there is no case made out against them.

Earlier, while turning down Umar Khalid’s and Sharjeel Imam’s pleas for bail on the grounds of inordinate delay in trial, the bench of Justices Aravind Kumar and N.V. Anjaria created a new category of offenders under UAPA—one of the main conspirators at the helm of planning the alleged riots.

Four days after the Justice Nagarathna-led bench’s critical remarks on that judgment, the SC Friday said, “The controversy raises a broader question of how constitutional courts are to be approached in such matters, and therefore, it would be appropriate for the CJI to constitute an appropriate bench to clarify the position of law, as laid down in K.A. Najeeb [judgment].”

The Friday reference of the matter of bail in UAPA cases to a larger bench came during the hearing of bail petitions filed by Khalid Saifi and Tasleem Ahmed, who are also facing trial in the Delhi riots case. This latest hearing was before a bench led by Justice Aravind Kumar, who authored the order rejecting Umar Khalid’s and Sharjeel Imam’s bail pleas.

In the K.A. Najeeb judgment, a three-judge bench decided that constitutional courts can grant bail to an accused charged under the stringent Unlawful Activities (Prevention) Act (UAPA), 1967, if they face prolonged incarceration and a delayed trial.

In the latest order, the bench of Justice Aravind Kumar and Prasanna B. Varale, besides its reference of the matter of bail in UAPA cases to a larger bench, said, “Any attempt [by the two accused] to delay the trial would be serious and constitute a ground for cancellation of bail.”

The bench pointed out that during the course of the hearing, ASG Raju submitted that in cases dealing with bail under UAPA, there appeared to be perceived divergence in how the K.A. Najeeb order was being understood and applied by benches of the apex court.

“At the outset, we deem it appropriate to say that Najeeb preserves constitutional course to Article 21, at the same time, recognising the legislative policy of the special statute of UAPA. Najeeb said statutory restriction does not per se oust the constitutional court from granting bail but recognised the court has to appreciate legislative policy and rigours will melt down when the period undergone has exceeded.” The bench, therefore, said, “Najeeb is neither a charter nor a mathematical command that all circumstances automatically result in bail.”

The court said that the Gulfisha judgment required understanding in this context. The Gulfisha judgment expressly recognised that Article 21 reserves a central place, and the right to a speedy trial is a facet of personal liberty.

 

‘Judicial discipline is not discharged by merely criticising’

This Monday, a co-ordinate bench of Justices B.V. Nagarathna and U. Bhuyan expressed “serious reservations” about co-equal, two-judge bench judgments that denied bail to accused Umar Khalid and Sharjeel Imam under the UAPA.

The Justice Nagarathna-led bench strongly criticised the January 2026 Khalid-Imam order and Gurwinder Singh vs Union of India (2024) order for failing to apply the binding three-judge precedent set in the landmark Union of India vs K.A. Najeeb (2021) case.

On Friday, the Kumar-led bench said that while reservations had been expressed, the court’s judgments in the riots case were not to be answered by the reservations expressed by a coordinate bench. A coordinate bench, without strong observations, can’t unsettle the ratio of another coordinate bench, the court said.

“A coordinate bench may explain its own understanding of law, but the doubt is about the root of legal application; it can’t be left to criticism unless referred to a large bench. The obligation of judicial discipline is not discharged by merely criticising. If the earlier view is sought to be inconsistent, it must be referred to a larger bench,” said the court.

The court noted that the Constitution did not demand either, but the issue of granting bail in UAPA cases where the accused has faced prolonged incarceration warranted attention from an appropriate bench. The question, therefore, is not whether Article 21 survives or not—it does—but how it survives when the Parliament has put restrictions based on natural security, etc.

“If the coordinate bench has expressed reservation, the proper answer is no further reservation but proper authoritative pronouncement,” Justice Kumar said.

(Edited by Madhurita Goswami)