Two benches of Supreme Court take different stance on bail of UAPA accused, case sent to CJI on Najeeb decision

The Supreme Court seems divided on granting bail to UAPA accused. The stand in this matter is different between the two benches of the court. In view of this, the bench of Justice Arvind Kumar has sent the matter to the CJI. It is recommended to make a separate bench. Let us know what the court has said in its order and what is the whole matter.

1. During the hearing, the counsel appearing for the state said that there is a clear difference in the way the three-judge bench of Najeeb’s decision has been understood and implemented by the benches of this court in cases related to bail under the UAPA, the court order said.
2. ASG SV Raju drew our attention to various judgments in the context of bail and liberty in support of the reference. He referred to Kartar Singh vs. Punjab, Shaheen Welfare vs. UOI, K. Cited the cases of Ramachandra Rao and others.
3. At the outset he also submitted that in the Gulfisha case, the decisions of Shaheen and Kartar cases have been considered and the roles of the accused have been appropriately differentiated. This issue is not a narrow one and it is necessary to adopt a proper constitutional approach keeping in mind the long imprisonment.
4. We consider it appropriate to say that Najib protects the constitutional path of Article 21. Also recognizing the legislative policy of the UAPA special statute, Najib said that the statutory restriction does not automatically prevent the Constitutional Court from granting bail, but he acknowledged that the Court has to respect the legislative policy and the strictures will be relaxed once the period expires.
5. The Najeeb case judgment is neither a charter nor a mathematical mandate that bail will automatically be granted in all circumstances. It is necessary to understand Gulfisha in this background. It clearly gives central place to Article 21 and considers the right to speedy trial as an aspect of personal liberty. It also recognizes Najib as a constitutional safeguard in the form of unquestionable detention.
6. We consider it appropriate to mention some paragraphs of Gulfisha. In Gulfisha, it did not accept the mechanical application of delay, but considered it necessary to take into account the actual circumstances of the trial and the risks to release caused by delay. In our view, this approach does not weaken Article 21 but provides a structured basis to it.
7. The coordinate bench may clarify its understanding of the law, but doubts as to the core of the legal application cannot be left open to criticism unless presented before a larger bench.
8. The responsibility of judicial discipline is not fulfilled merely by criticism. If the foregoing view appears inconsistent, it should be presented before a larger bench. We believe that it is appropriate to place the alleged contradiction before the appropriate bench.
9. We are also aware that an unconditional interpretation of the provisions can have serious consequences, while on the other hand, an uneven and unconditional application of Article 43D5 will empower Article 21. The Constitution does not demand any of these and this is the issue which requires the attention of the appropriate bench.
10. Therefore the question is not whether Article 21 exists or not, it does exist. The question is how can it continue to exist when Parliament has imposed restrictions on grounds of natural security etc.?
11. We clarify that there is nothing in this obligation that limits any kind of objection before the Najeeb bench. If the coordination bench has expressed an objection, the appropriate response is not another objection but an appropriate official decision.
12. The order said that this controversy raises a broader question as to how constitutional courts should deal with such cases and therefore it would be appropriate that the Chief Justice constitutes an appropriate bench to clarify the position of law laid down in the Najeeb case. Instructions have been given to present the registry before the Chief Justice.
13. Justice said, we make it clear that the present context should not be understood as any comment. The present petitioners face significant prison terms and are unlikely to go to trial, and the State itself has invited applications in the Najeeb case. We grant interim bail of 6 months to Tasleem and Saifi.
14. They will have to surrender their passport, and if they do not have a passport, they will have to submit an affidavit to this effect. He will not have to leave Delhi without the permission of the trial court. They will have to submit their current residential address. Will have to appear before the trial court on every scheduled date.
15. They will not contact any prosecution witnesses, protected persons or complainants. They will not have to tamper with evidence including electronic. Print or electronic media will not have to make any public statement.