In a decision that could bring in further changes to bail jurisprudence in terror cases, a Division Bench of the Supreme Court on Friday referred to a larger Bench the legal questions recently raised on the correctness of its earlier judgment denying bail to Umar Khalid and Sharjeel Imam in the Delhi riots case.
The reference to larger Bench was made by a Bench of Justices Aravind Kumar and PB Varale, while granting interim bail today to two other Delhi riots accused, Tasleem Ahmed and Khalid Saifi, for a six month period.
Notably during the hearing of the matter today, Additional Solicitor General (ASG) SV Raju called for a relook at a recent judgment which held that bail should be the rule even in cases registered under the Unlawful Activities (Prevention) Act (UAPA).
In that case, while granting bail to narco-terror accused Syed Iftikar Andrabi in a UAPA case, a Division Bench of Justices BV Nagarathna and Ujjal Bhuyan had doubted the correctness of a judgment passed in January denying bail to Umar Khalid and Sharjeel Imam.
The Justice Nagarathna Bench opined that bail should be the rule and jail the exception even in UAPA cases.
It also said that the Umar Khalid bail denial order appeared to be in conflict with the principles laid down in an earlier judgment in KA Najeeb case in which it was held that prolonged delays in trial was a ground to grant bail in UAPA cases regardless of stringent tests for bail in UAPA cases.
ASG Raju today called for a larger Bench reference on these issues. He maintained that the stringent standards for bail in UAPA cases do not violate the right to liberty under Article 21 of the Constitution. He argued that all UAPA accused cannot be given the blanket benefit of 'bail not jail' principles.
The Court has now ordered that this issue be placed before the Chief Justice of India so that an appropriate Bench may be formed to examine the matter and give an authoritative decision.
"It is necessary that an appropriate bench be constituted by CJI to clarify the law in KA Najeeb particularly the application of 43D(5) of UAPA (stringent tests for bail)," the Court said today.
The Delhi riots case concerns the communal rioting that happened in North-East Delhi in 2020 and led to death of more than 50 people. The riots took place amid protests against the Citizenship Amendment Act of 2019. Several persons were arrested on allegations that the conspired to trigger the riots.
Ahmed and Saifi were among those accused in the case. They were earlier denied bail by the Delhi High Court, prompting them to approach the Supreme Court, which has now granted them interim bail.
In its January judgment in the case of Gulfisha Fatima and ors. v. State, the Court had granted bail to five other accused, while denying bail to Umar Khalid and Sharejel Imam on the ground that they stand on a separate footing when compared to other accused persons.
During today's hearing in the bail pleas by Ahmed and Saifi, ASG Raju defended the Court's January 2026 judgment in Gulfisha Fatima.
He expressed reservations over the more recent judgment in the Andrabi case rendered by Justice BV Nagarathna and Ujjal Bhuyan.
He argued bail petitions in UAPA cases should be decided on a case-to-case assessment, after accounting for the gravity of the offences alleged in each case.
In its reference order today, the Court also appeared to find some force in Raju's argument that it is was not as if the Gulfisha Fatima case completely ignored the ruling in KA Najeeb.
"What Gulfisha declined to accept is a mechanical or solitary application of delay (as a ground for bail in UAPA cases). The said approach does not dilute article 21. The judgement understood Najeeb as a principled safeguarding as unconscionable detention and not as a mathematical formula or universal application," the Court said.
It went on to note that another Division Bench (in the Andrabi case) has, nevertheless, expressed doubts about the correctness of the Gulfisha judgment. The Court added that a Bench cannot unsettle law given by another Bench of equal strength.
"In the later decision of Andrabi, another Bench has expressed reservations on certain aspects in Gulfisha Fatima, a narrow reading of KA Najeeb. Statements of this court are not to be answered by other benches of similar strength. A coordinate bench cannot make strong observations and effectively unsettle the ratio of an earlier bench while sitting in equal strength. The law has often grown through reasoned difference. A coordinate bench may express doubt. But where it goes to the reasoning, it cannot be left at criticism. A bench of equal strength cannot achieve by language of reservation what it cannot achieve by declaration of law."
The Court, therefore, concluded that the matter has to be settled by a larger Bench of the Court rather than keeping such issues uncertain.
"We therefore consider it our duty, to place the conflict before a bench of appropriate strength. The matter cannot be left to uncertain application by courts. The question therefore is not whether Article 21 survives Section 43 (UAPA). True question is how it is to be applied in as a statutory way where the parliament has placed restrictions on bail. We clarify that nothing in this order is intended to whittle down the authority in KA Najeeb," the Court directed.
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