With conflicting orders from two-judge benches of the Supreme Court on the question of bail to accused in cases under the Unlawful Activities (Prevention) Act, the Centre on Friday strongly pressed for the issue to be referred to a larger bench.
It questioned whether the principle that “bail is the rule and jail is the exception” would apply in cases involving serious terror charges if trials are delayed, citing examples such as 2008 Mumbai terror attack convict Ajmal Kasab or Lashkar-e-Toiba founder Hafiz Saeed, and asking whether they would have been granted bail under such circumstances.
The bench of Justices Aravind Kumar and P B Varale was hearing the bail pleas of Tasleem Ahmed and Khalid Saifi, accused in the 2020 Delhi riots case. The bench reserved its order on their bail pleas and the question of reference and said it will pronounce the order later in the day or on Monday, May 25.
Additional Solicitor General S V Raju and Advocate Rajat Nair, appearing for the Delhi Police, told the bench that the question of bail should depend on the facts of each case.
“If you take the case of Ajmal Kasab, there are a large number of witnesses. Will you grant him bail, given that he has been in jail for 7 or 8 years? It can’t be done. Therefore, you have to examine the facts of each case. Suppose if Hafiz Sayeed is brought from Pakistan and tried, and he is in jail for 5 years because there are a large number of witnesses (because) you have to collect evidence from abroad, will you release him on bail (saying) no, no 5 years (has passed)?” Raju asked.
‘Bail is the rule and jail the exception’
On May 18, a two-judge bench of Justices B V Nagarathna and Ujjal Bhuyan, while granting bail to Syed Ifthikar Andrabi, an accused in a UAPA case probed by the National Investigation Agency (NIA), had disagreed with the judgments of two other two-judge benches in Gurwinder Singh vs State of Punjab (February 2024) and Gulfisha Fatima vs State (NCT of Delhi) (January 5, 2026).
In the Gurvinder Singh case, which concerned an accused in a UAPA case of Sikh separatism, the top court, while rejecting his bail, said that relief could be denied if accusations appear to be prima facie true and that in such situations, bail would be an exception and jail the norm.
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In the Gulfisha Fatima vs State case, an SC bench of Justices Kumar and N V Anjaria granted bail to five other accused in the 2020 Delhi riots conspiracy case, but denied relief to Umar Khalid and Sharjeel Imam, saying they stood on a “higher footing in the hierarchy of participation”. The court had observed that prolonged incarceration cannot be an “absolute entitlement” to seek bail in terror cases.
The May 18 ruling said both these benches had not followed an earlier ruling by a three-judges bench in the 2021 Union Of India vs K A Najeeb, in which the top court while upholding the bail granted to an accused who had been in jail since April 2015 in the infamous Kerala professor palm chopping case, held that violation of a fundamental right like right to speedy trial can be a ground for grant of bail even under a stringent law like UAPA.
Disagreeing with Gurwinder Singh and Gufisha Fatima’s case orders, Justices Nagarathna and Bhuyan said they cannot be invoked to justify the indefinite incarceration of an accused under the UAPA. The bench said bail is the rule and jail the exception is a constitutional principle flowing from articles 21 and 22, and the presumption of innocence is the cornerstone of any civilised society governed by the rule of law.
On Friday, ASG Raju opposed this and pointed out that 53 people had died in the Delhi riots. “Latest (May 18) judgement says you don’t have to see the role, you don’t have to see the nature of the crime. So there is no categorisation,” he said.
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“This can’t be done. This can’t be how it has to be applied. It has to be applied to the facts of each case. That’s what your Lordships have precisely done (in Gulfisha Fathima),” the law officer added.
Raju referred to paragraph 52 of the Gulfisha Fathima judgement wherein the Supreme Court said, “the consequence of the above is that Najeeb… must be understood as a principled safeguard against unconscionable detention”.
It said, “Prolonged incarceration is a matter of serious constitutional concern and carries great weight. It is not, however, the sole determinant. The Court must consider, in totality, whether continued detention has become constitutionally unjustifiable, having regard to the role attributed, the statutory context, the limited prima facie material, the trajectory of the trial, the causes of delay, and the availability of intermediate remedies.”
“This is how Najeeb came to be interpreted…and currently and rightly applied. You can’t just say delay. Suppose the delay is caused by the accused, you can’t say grant bail,” he added.
