Senior Advocate Chander Uday Singh has strongly criticised recent Supreme Court decisions narrowing the scope of bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA), while making a striking remark about the Delhi riots larger conspiracy and Bhima Koregaon prosecutions.
"Let me say this loud and clear. I don't believe any judge of the Supreme Court of India, hand on heart, does not know what is the reality in the Bhima Koregaon and Delhi riots cases. I don't believe that any judge believes in their heart that there is even an iota of truth in the charges. You can put a gloss on things that there are very serious allegations. They are allegations. Every judge knows that these allegations are hollow and that they will crash to the ground and burn," Singh said in a recent interview with LiveLaw.
The remarks came during a discussion on what Singh described as inconsistencies in the Supreme Court's bail jurisprudence under special statutes such as the UAPA.
Singh pointed out that the Supreme Court's three-judge Bench judgment in Union of India v. K.A. Najeeb settled the legal position that constitutional courts can grant bail notwithstanding statutory restrictions where prolonged incarceration and delays in trial result in a violation of Article 21 of the Constitution.
He noted that the principles laid down in Najeeb were subsequently followed in more than 20 decisions, including cases under the Prevention of Money Laundering Act, 2002 (PMLA). However, he described the 2024 judgment in Gurwinder Singh as a departure from that settled position.
In Gurwinder Singh, a Bench comprising Justices M.M. Sundresh and Aravind Kumar held that under the UAPA, "jail is the rule and bail is an exception" and that delay in trial alone cannot justify the grant of bail in serious offences.
Singh argued that the position adopted in Gurwinder Singh was later reinforced by a Bench of Justices Aravind Kumar and N.V. Anjaria in Gulfisha Fatima.
"There were only two judgments where a contrary view was taken. The first one was Gurwinder Singh. In Gurwinder Singh, they distinguished Najeeb for the first time. That again has been followed in the case of Gulfisha Fatima, which, in my submission, ignored the larger number of judgments which said that the seriousness of charge is irrelevant if you are not able to complete the trial expeditiously. Then Article 21 gets violated. The seriousness of the charge or the wording of the law becomes completely irrelevant," Singh said.
The senior counsel pointed out that several later judgments reaffirmed the binding nature of Najeeb. Referring to the decision in Sheikh Javed Iqbal, Singh said the Supreme Court had made it clear that when a trial is substantially delayed, it is not open to the State to oppose bail merely by citing the gravity of allegations.
He also referred to the recent judgment in Syed Ifthikar Andrabi, delivered by Justices B.V. Nagarathna and Ujjal Bhuyan, which criticised the approach adopted in Gurwinder Singh and Gulfisha Fatima and reiterated that a two-judge Bench is bound by the law declared in Najeeb.
The observations in Andrabi subsequently became the subject of controversy before a Bench led by Justice Aravind Kumar hearing bail pleas of co-accused in the Delhi riots conspiracy case (Tasleem Ahmed v State). Noting a perceived conflict in precedents, a Bench of Justices Aravind Kumar and P.B. Varale recently referred to a larger Bench the question whether the rigours of the UAPA can be relaxed in cases involving prolonged incarceration and delayed trials.
Singh also criticised the manner in which investigations are conducted in cases under special statutes. According to him, agencies increasingly rely on voluminous narrative-based charge sheets that make it difficult for accused persons to secure bail.
"In these cases, police officers are no longer investigating a case. They arrest merely on suspicion based on a narrative which is pressed through voluminous documents. Chargesheets are filed of 5,000 or 12,000 pages which are just one long narrative. There is nothing in those as a matter of substance to nail the person down. The narrative becomes so difficult to overcome at the bail stage that trial courts and High Courts almost as a matter of course deny bail," he said.
Singh further questioned the direction in Gulfisha Fatima, requiring Umar Khalid and Sharjeel Imam to wait for a year before renewing their bail pleas.
"What is the basis for the Supreme Court to say that Article 21 will be violated after one year but is not being violated today, even though charges are not framed, and even though the possibility of framing charges and completing the trial is probably not for ten years?" he asked.
Returning to the Delhi riots conspiracy and Bhima Koregaon prosecutions, Singh said judges were fully aware of the realities of such cases notwithstanding the seriousness of allegations levelled by investigating agencies.
"I don't believe that any judge believes in their heart that there is even an iota of truth in the charges. You can put a gloss on things that there are very serious allegations. Every judge knows that these allegations are hollow and that they will crash to the ground and burn," he said.
Drawing a parallel with the Delhi excise policy case, Singh recalled an observation allegedly made by former Supreme Court judge Justice Sanjiv Khanna during a hearing. Singh recalled Justice Khanna had remarked that "two questions in cross-examination" could dismantle the prosecution's case. Singh said the subsequent discharge of all accused in the excise policy case underscored the dangers of prolonged incarceration in prosecutions that may ultimately fail at trial.
"Justice Sanjiv Khanna when he was Court 2, he said in open Court to Mr [Additional] Solicitor General who was arguing the matter. He said," Two questions in cross-examination and your entire liquor scandal case will go. What happened? The trial court has given a 589 page judgment saying there is not even an iota of case for framing charges. He said this two years ago...Big liquor scandal Chief Minister, Deputy Chief Minister...23 accused all discharged."
The interview can be watched here.