New Delhi: The Supreme Court seems divided on the issue of bail and the right to liberty enshrined as a fundamental right. A bench of the Supreme Court on Monday expressed “serious objection” to the court’s decision denying bail to Umar Khalid and Sharjeel Imam, saying it does not follow the judgment of a larger bench – which is the “law of the land” and according to which bail should be granted in cases of prolonged imprisonment and delayed trial even under the UAPA and PMLA. A bench of Justices BV Nagarathna and Ujjal Bhuyan said it was “difficult” to follow the division-bench judgment in the Delhi riots case, which contradicted the 2021 three-judge Najeeb case judgment, and expressed concern over “the propriety of smaller benches gradually hollowing out the constitutional strength of larger bench judgments without any clear dissent”. The bench said, ‘Bail is the rule, jail the exception’ was not just a slogan emanating from the CrPC, but a constitutional principle based on Articles 21 and 22.
presumption of innocence Cornerstone of society: SC
The Supreme Court said that the presumption of innocence is the cornerstone of any civilized society governed by the rule of law. “Laws can undoubtedly check the manner in which that principle is applied, particularly in cases involving national security or terrorist offenses for which the UAP Act exists, but they cannot completely overturn the constitutional relationship between liberty and detention”. Analyzing various judgments passed by the Supreme Court after the Najeeb judgments, the bench said, “It is clear from a reading of the two judgments of Gurvinder Singh and Gulfisha Fatima (relating to the Delhi riots case) that the two-judge bench has made a clear deviation from the ratio laid down in KA Najeeb (case). Judicial discipline and certainty demand that benches of smaller strength should be mindful of the judgments of larger benches and Be bound to follow them.”” “If the smaller benches are unable to agree to the ratio laid down by the larger bench, the appropriate and only course of action is to refer the matter to the Hon’ble CJI for consideration by an even larger bench. Being composed of two judges, we are bound by the ratio laid down by the three-judge bench in the KA Najeeb case. We say this and nothing more,” the bench said. The bench said that the Najeeb case, where an alleged PFI member was granted bail, is a binding law and cannot be weakened, quashed or disregarded by the trial court, the High Court or even lesser strength benches of this court. The bench said that the decision in Najeeb case was not that mere passage of time automatically entitles the accused to bail under Section 43-D (5) UAPA. “Instead, the larger bench held that where the imprisonment becomes unnecessarily long and the trial is unlikely to be concluded within a reasonable time, the continued application of the section becomes constitutionally suspect given the mandate of Section 21. In that sense, Najib clarified a constitutional limit on the operation of section 43-D(5)’s statutory restriction,” it said. While rejecting the bail pleas of Khalid and Imam, the Supreme Court had said that “the finding in Najeeb (case) is appropriately situated as a constitutional protection to be applied in appropriate cases,” and not for “universal application”. The bench said, “We have serious objections to various aspects of the judgment in Gulfisha Fatima (case), including barring the right of the two appellants to seek bail for a period of one year. The judgment in the Gulfisha Fatima case would lead us to believe that Najeeb has only a narrow and extraordinary deviation from Section 43-D(5) justified in extreme factual circumstances. It is this hollowing out of the import of the comments at Najib that concerns us.“It appears that something was invented and then destroyed,” argued first Gurvinder and then Gulfisha Fatima. The court said the emphasis in Najib’s decision was constitutional in nature and “it was directed at preventing Section 43-D(5) from overriding Article 21 considerations in cases of excessive delay and prolonged imprisonment. Najib’s constitutional power lies in the restoration of hierarchy between one statute, namely the UAP Act, and the Constitution. Section 43-D(5) remains subject to Article 21 at all times,” the court said.
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