Supreme Court's differing opinions on bail for Delhi riot accused

NEW DELHI: A day after Supreme Court disapproved of its own order denying bail to activists Umar Khalid and Sharjeel Imam, saying it violated a larger bench ruling, difference of opinion among benches reverberated in the court's hearing on bail plea of other accused in the 2020 Delhi riots cases, with police on Tuesday telling SC the case had to be referred to a larger bench, as there seems to be an error in the verdict, reports Amit Anand Choudhary.

Referring to SC's May 18 verdict which said presumption of innocence is the cornerstone of any civilised society governed by rule of law, additional solicitor general S V Raju told a bench of Justices Aravind Kumar and Prasanna B Varale that mandatory "presumption of innocence takes a backseat" in case of a special law such as UAPA.

"Do you want to say it has an error?" asked the bench.

The ASG said he had not read the entire judgment and needed a day to go through it. However, he said the issue has to be referred to a larger bench.

A bench of Justices B V Nagarathna and Ujjal Bhuyan on Monday said it was "difficult to follow" the division-bench judgment in the Delhi riots case, which contradicted the 2021 three-judge Najeeb case verdict.

ASG cited Monday’s verdict in apex court

The bench expressed concern over “propriety of smaller benches progressively hollowing out the constitutional force of a larger bench decision without ever expressly disagreeing with it”.

As soon as the bail plea of accused Tasleem Ahmed and Abdul Khalid Saifi was called for hearing, the ASG brought Monday's judgment to court's notice and sought adjournment.

Interestingly, the judgment that Justices Nagarathna and Ujjal Bhuyan criticised on Monday, had been delivered by a bench led by Justice Aravind Kumar on Jan 5.

In its Monday verdict, SC said that “bail is the rule, jail the exception” wasn’t just a slogan flowing from CrPC but a constitutional principle grounded on Article 21 & 22. It expressed “serious reservations” on the court’s verdict denying bail to Khalid and Imam, saying it didn’t follow a larger bench judgment — which is “law of the land” and as per which bail should be granted in cases of long incarceration and delay in trial, even under UAPA and PMLA.

“Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAPA is meant, but those cannot altogether invert the constitutional relationship between liberty and detention” the bench said