The Supreme Court appears divided on the issue of bail and the fundamental right to liberty. A bench of Justices B V Nagarathna and Ujjal Bhuyan on Monday expressed serious reservations about the court's earlier verdict denying bail to Umar Khalid and Sharjeel Imam. The bench noted that the earlier division bench judgment did not follow the larger bench ruling in the 2021 K A Najeeb case, which is the law of the land.
Bail as a Constitutional Principle
The bench observed that the principle 'bail is the rule, jail the exception' is not merely a slogan under the Criminal Procedure Code but a constitutional principle grounded in Articles 21 and 22 of the Constitution. It emphasized that even under stringent laws like the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), bail should be granted in cases of long incarceration and delay in trial.
Concern Over Smaller Benches
The bench expressed concern over the propriety of smaller benches progressively hollowing out the constitutional force of a larger bench decision without expressly disagreeing with it. It stated that judicial discipline and certainty require benches of smaller strength to follow decisions by larger benches. If they disagree, the proper course is to refer the matter to the Chief Justice of India for consideration by a still larger bench.
Analyzing various verdicts that followed the Najeeb ruling, the bench said that the two-judge bench decisions in Gurwinder Singh and Gulfisha Fatima (related to the Delhi riots case) made a clear departure from the ratio laid down in the Najeeb case. The bench emphasized that it is bound by the ratio laid down by the three-judge bench in K A Najeeb.
Presumption of Innocence
The Supreme Court reiterated that the presumption of innocence is the cornerstone of any civilized society governed by the rule of law. While statutes like the UAPA may calibrate how that principle is applied, they cannot altogether invert the constitutional relationship between liberty and detention.
Najeeb Case Ruling
The bench clarified that the Najeeb case ruling was not that mere passage of time automatically entitles an accused to bail under Section 43-D(5) of UAPA. Instead, the larger bench recognized that where incarceration becomes unduly prolonged and the trial is unlikely to conclude within a reasonable time, continued application of Section 43-D(5) becomes constitutionally suspect given the mandate of Article 21. The bench described this as a constitutional limitation on the operation of the statutory embargo.
While rejecting the bail pleas of Khalid and Imam, the earlier bench had said that the Najeeb finding is a constitutional safeguard to be invoked in appropriate cases, not for universal application. However, the current bench expressed serious reservations about that reasoning, particularly in the Gulfisha Fatima case, which foreclosed the right to seek bail for one year. The bench said that the reasoning in Gurwinder and Gulfisha Fatima appeared to proceed against something invented and then destroyed.
The court concluded that the emphasis in the Najeeb judgment was constitutional in nature, aimed at preventing Section 43-D(5) from overpowering Article 21 considerations in cases of gross delay and prolonged incarceration. The constitutional force of Najeeb lies in restoring the hierarchy between a statute and the Constitution, with Section 43-D(5) remaining subordinate to Article 21 at all times.
