New Delhi : The Supreme Court on Monday, May 18, expressed reservations about the judgement in Gulfisha Fathima vs State, which denied bail to student activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy. The apex court observed that bail should be the rule and jail, the exception, even in Unlawful Activities Prevention Act (UAPA) cases.
The Court made this observation while granting bail to a Kashmir man, Syed Iftikhar Andrabi, who was languishing in jail since June 2020 without a trial. The accused was arrested in a narco-terrorism case by the National Investigation Agency (NIA).
The bench of Justices BV Nagarathna and Ujjal Bhuyan noted that the two-judge bench (Justice Aravind Kumar and Justice NV Anjaria) in Gulfisha Fatima vs State did not abide by the judgement delivered by a three-judge bench in 2021, in Union of India vs KA Najeeb, which recognised long delay in trial as a ground for bail in cases under the Unlawful Activities Prevention Act. In this case, while Gulfisha Fatima, Meera Haider, Shifa Ur Rehman, Mohammed Saleem Khan and Shadab Ahmed were granted bail, activists Umar Khalid and Sharejeel Imam were denied bail.
“We have serious reservations about judgment in Gulfisha Fatima. The judgment in Gulfisha Fatima would have us believe that Najeeb (a judgment which says an accused cannot be indefinitely jailed) is only a narrow and exceptional departure from Section 43D(5), justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with. The broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release,” the bench was quoted as saying by Bar and Bench.
The Court took strong exceptions to the two-judge bench for deviating from the views taken in the Najeeb case.
“A judgment rendered by a bench of lesser strength is bound by the law declared by the bench of greater strength. Judicial discipline mandates that such a binding precedent must either be followed or, in case of doubt, be referred to a larger bench. A smaller bench cannot dilute, circumvent or disregard the ratio of a larger bench,” Justice Bhuyan said in the judgment, according to Live Law.
The apex court also cited the low conviction rates in UAPA cases, according to reports. It said that the right to speedy trial cannot be defeated merely because an accused has been booked under UAPA.
Earlier, a Supreme Court bench of Justices Aravind Kumar and NV Anjaria had denied bail to Umar Khalid and Sharjeel Imam earlier in January stating that the materials showed a prima facie case against them under the Unlawful Activities (Prevention) Act, 1967.
Denying bail to Umar Khalid and Sharjeel Imam for their “central and formative role” in the conspiracy case, Justice Aravind Kumar had said that prosecutions under the UAPA do not bar judicial scrutiny to assess if there was a “prima facie” case.
Umar Khalid and Sharjeel Imam, who were in the forefront of anti-Citizenship Amendment Act protests, were booked under UAPA after the protests triggered communal riots in Delhi. Police accused the anti-CAA activists of formulating the “larger conspiracy” behind the riots.
