Divergent UAPA bail rulings may need larger bench, Delhi Police tells Supreme Court

The ASG said he is studying the judgment delivered on Monday by the SC, granting bail to Kashmir resident Syed Iftikhar Andrabi – booked under UAPA in a case of narco-terror probed by the National Investigation Agency (NIA). He urged the bench to post the bail hearing for Wednesday so that it can also look into whether the reference was required.

On Monday, a bench of Justices B V Nagarathna and Ujjal Bhuyan, while granting bail to Andrabi, had referred to the 2021 decision of a three-judge SC bench in the case Union of India vs K A Najeeb. The court had in the case said that violation of a fundamental right like right to speedy trial can be a ground for grant of bail even under a stringent law like the UAPA. The bench had then upheld the bail granted to an accused jailed since April 2015 for alleged involvement in chopping the hand of a Kerala professor in 2010.

The bench of Justices Nagarathna and Bhuyan said that despite this, in two subsequent judgments — Gurwinder Singh vs State of Punjab in February 2024 and Gulfisha Fatima vs State (NCT of Delhi) on January 5, 2026 – separate two-judge benches took a somewhat divergent view “from the clear, distinctive trajectory… earlier followed” in the Najeeb case.

In the 2024 ruling, a bench cautioned against “mechanical” invocation of delay to seek bail, suggesting bail should only be considered if it also satisfies the test under Section 43(D)(5) of UAPA.

In Gulfisha Fatima vs State, an SC bench of Justices Aravind Kumar and N V Anjaria, while granting bail to five accused in the Delhi riots conspiracy case, had denied relief to accused Umar Khalid and Sharjeel Imam, saying they stood on a “higher footing in the hierarchy of participation”. The court had observed that prolonged incarceration cannot be an “absolute entitlement” to seek bail in terror cases.

Questioning this, the bench of Justices Nagarathna and Bhuyan said, “We have serious reservations on various aspects of the judgment in the Gulfisha Fatima case, including foreclosing the right of the two appellants to seek bail for a period of one year…”

The bench noted that what was said by the three-judges bench is the law and benches of lesser strength cannot dilute it. “We make it clear that K A Najeeb is the binding law and entitled to the protection of stare decisis. It cannot be diluted, circumvented, or disregarded by the trial court, the High Court, or even by benches of lower strength of this court,” it said.

The doctrine of stare decisis requires courts to follow established legal precedents so as to ensure consistency, fairness and predictability, it further said. “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,” the bench said in its Monday ruling.