SC Refers Judgement, Denying Bail To Umar Khalid And Sharjeel Imam, To Larger Bench
The bench observed that there was a perceived conflict among different benches regarding the understanding of the judgement.
By Sumit Saxena
Published : May 22, 2026 at 5:37 PM IST
|Updated : May 22, 2026 at 10:37 PM IST
New Delhi: The Supreme Court on Friday referred to a larger bench the questions recently raised on the correctness of an earlier judgement denying bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case.
A bench comprising Justices Aravind Kumar and P B Varale made the reference today, while granting interim bail to two other accused persons, Tasleem Ahmed and Khalid Saifi, in the 2020 Delhi riots case. Earlier today, Additional Solicitor General S V Raju, representing Delhi Police, submitted that the recent ruling in Syed Iftikhar Andrabi of Kashmir does not lay down the correct position of law on bail under the UAPA.
The bench led by Justice Kumar observed that there was a "perceived conflict" among different benches regarding the understanding of the three-judge bench judgement in Union of India Vs K A Najeeb (2021). The 2021 judgement held that long incarceration can be a ground to grant bail in cases under the Unlawful Activities Prevention Act, regardless of the statutory rigours.
On May 18, a bench comprising justices B V Nagarathna and Ujjal Bhuyan said that bail should be the rule even in UAPA cases and stressed that the right to a speedy trial cannot be defeated merely because an accused has been booked under this stringent anti-terror law. “We have serious reservations on various aspects of the judgement in Gulfisha Fatima, including foreclosing the right of the two appellants to seek bail for a period of one year. The judgement in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5), justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with,” said Justice Bhuyan in the 102-page judgement.
The bench said that judgements in the Gulfisha Fatima case offered a narrow reading of the K A Najeeb verdict and such reasoning amounts to hollowing out the constitutional course of the three-judge bench decision.
On May 18, the bench made the above observation while granting bail to one Syed Iftikhar Andrabi, J&K resident, who has been in custody since June 2020 in connection with a narco‑terrorism case registered by the National Investigation Agency (NIA).
Later, a request was made before the bench led by Justice Kumar regarding a reference to a larger bench in the context of this May 18 verdict.
In the reference order passed today, Justice Kumar observed that the Najeeb ruling was not a mathematical command to mechanically grant bail if there was a delay in trial in a UAPA case.
Justice Kumar observed that Gulfisha Fatima understood K A Najeeb as a principled safeguard and not as a mathematical formula. “We do not propose to enter into adjudication of the correctness of the observation made by a coordinate bench. Judgements of this court are not to be answered by a counter-observation from another bench of equal strength. The discipline of precedent demands a higher institutional method,” said the bench.
The bench added that where a coordinate bench entertains reservations about the reasoning of an earlier coordinate bench, particularly regarding the application of a binding three-judge bench decision, the proper course is well settled. "The matter must be placed before the CJI for the constitution of an appropriate bench. A coordinate bench cannot by strong observation, effectively unsettle the ratio of an earlier coordinate bench while continuing to sit in equal strength…,” said the bench led by Justice Kumar.
The bench further observed that in the Gulfisha Fatima case, bail was granted to five accused, and was denied to two others (Umar Khalid and Sharjeel Imam), upon an individualised assessment of their roles.
Justice Kumar said we deem it necessary to observe that disagreement between coordinate benches by itself is neither unusual nor undesirable. Justice Kumar said a bench of equal strength cannot achieve by language of reservation, what it cannot achieve by declaration of law.
The bench observed that referring the matter to a larger bench is the proper recourse in such situations, rather than just making critical observations. Justice Kumar observed that if a coordinate bench has expressed reservation about the manner in which the KA Najeeb ruling was followed by another coordinate bench, the proper answer is not further reservation but authoritative resolution.
The bench also observed that an unqualified application of the proposition that delay will grant bail can have dangerous consequences in terrorism cases, when other material factors touching upon national security are not considered.
The bench said the matter was placed before the CJI for the constitution of an appropriate bench to clarify or expound the position of law laid down in the KA Najeeb ruling, particularly against the backdrop of the rigour of Section 43D (5) of UAPA.
Could Ajmal Kasab secure bail due to delay in trial: Centre in SC
With two Supreme Court benches delivering conflicting rulings on bail under the UAPA, the Centre urged that the issue should be referred to a larger bench. Additional Solicitor General S V Raju and advocate Rajat Nair represented the Centre before the bench led by Justice Kumar.
During the hearing earlier in the day, the Centre cited examples of 2008 Mumbai terror attack convict Ajmal Kasab and Lashkar-e-Toiba founder Hafiz Saeed, asking whether they would have secured bail under such circumstances.
Regarding the principle that "bail is the rule and jail is the exception," the Centre's counsel questioned whether it would apply in cases involving serious terror charges if trials are delayed and stressed that the question of bail should depend on the facts of each case.
Raju vehemently argued, "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”.
"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.
Raju pointed out that 53 people had died in the Delhi riots, and the May 18 judgement says you don’t have to see the role or the nature of the crime, so there is no categorisation.
Agreeing with the court’s view in the Gulfisha Fathima verdict, Raju insisted that it cannot be done and must be applied to the facts of each case, which is precisely what your lordships have done.
‘Can’t be left at the stage of criticism’, Justice Kumar on Justice Bhuyan’s verdict
The bench said, "We deem it necessary to observe that disagreement between coordinate benches, by itself, is neither unusual nor undesirable. The law has often grown through reasoned difference."
"What the discipline of precedent does not countenance, however, is a course by which an earlier coordinate Bench is subjected to reservations of a fundamental character, particularly on the alleged misapplication of a larger Bench decision, without the matter being placed before a Bench competent in strength to resolve the perceived conflict," it added.
The bench said a coordinate bench may distinguish an earlier decision, may explain its own understanding of the law, and may, in an appropriate case, express doubt.
"But where the doubt goes to the root of the legal principle applied, the matter cannot be left at the stage of criticism. A doubt expressed in emphatic terms is still a doubt; it is not a declaration of law. Unless resolved by a Bench of appropriate strength, it only introduces uncertainty in the administration of justice," it said.
"A Bench of equal strength cannot achieve, by language of reservation, what it cannot achieve by declaration of law. If the earlier view is thought to be inconsistent with a larger Bench decision, the proper course is reference," it said.
The bench said that course protects not merely the judgment doubted, but the authority of this Court itself. In matters touching personal liberty, national security, statutory restrictions on bail and prolonged incarceration, uncertainty in the law is itself an institutional cost.
"It is possible for Benches of this Court to differ in emphasis. It is equally possible that two decisions may proceed on the same constitutional foundation but apply it differently to distinct factual settings. But where the difference is projected as one concerning the binding force of a three-Judge Bench decision, and where such difference is likely to affect pending trials under special statutes across the country, the matter cannot be left to uncertain application by courts," said Justice Kumar.
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