Years ago, while releasing this writer’s book on judicial reforms, Justice J Chelameswar shared an anecdote. A judge of the Andhra Pradesh High Court, while dealing with a politically sensitive case, was confronted with two conflicting judgements of the Supreme Court rendered the same year. The dilemma was disclosed to K Parasaran, then the Attorney General of India, who appeared before the high court on request. The judge asked, “What should I do when there are two conflicting judgements?” Justice Chelameswar recalled Parasaran’s reply: “Your lordships are very lucky. There are two judgements before you and you may choose to follow either. But more often, I am confronted with a situation in the Supreme Court where I rely on the earlier part of a judgement and my opponent relies on the later part of the same judgement.” The humour in Parasaran’s response indicates the trappings of a poly-vocal court.
It is not as if every different voice from the Bench is a matter of concern. There are instances where one Bench relies on a larger Bench’s judgement to say that a coordinate Bench went wrong. This is not an aberration to be worried about, but an assertion to be proud of. When a judgement is erroneous on the face of it, for it is against the pronouncement by a larger Bench on human dignity and personal liberty, a poly-vocal court becomes a court of possibilities.
When a division Bench of Justices Ujjal Bhuyan and B V Nagarathna recently held that the denial of bail to activist Umar Khalid by a coordinate Bench was wrong, as it refused to follow the binding precedent by a three-judge Bench in K A Najeeb (2021) and other cases, it was more than a course correction. It was an affirmation of India’s liberal democracy.
The facts of the case, Syed Iftikhar Andrabi (2026), are illustrative. The allegations of narco-terrorism levelled against the appellant are serious. Nevertheless, those were unsupported by materials except self-incriminatory confessions. The appellant has been incarcerated since 2020 and some co-accused had already been granted bail. More significantly, prior to the present case, he had suffered preventive detention under the Jammu and Kashmir Public Safety Act and alleged victimisation. Yet, the trial courts and the high court remained helpless for about six years. The grant of bail in such a situation was justifiable.
The question whether the statutory hurdles could block such constitutional mandates was answered negatively in Najeeb. The restrictive language in Section 43D(5) of the Unlawful Activities (Prevention) Act stipulates denial of bail if “there are reasonable grounds for believing that the accusation is prima facie true”. Yet, in Najeeb, the court said that when there is prolonged incarceration without trial, it infringes on the fundamental rights of the accused and therefore the rigidity of the statute should yield to the language of liberty in the Constitution.
Also, in Javed Gulam Nabi Shaikh (2024), the court had flagged the proposition that the seriousness of allegations, instead of being projected as a reason to deny bail, should facilitate speedy trial, which is a fundamental right under Article 21. The court even said that after denying this crucial right, “The State or the prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious.”
Despite the authoritative pronouncement in Najeeb, which laid down the law, a subsequent two-judge Bench got inclined more towards the stringency of the statute than the rights. Thus, in Gurwinder Singh (2024) and more recently in Gulfisha Fatima (2026) (the Umar Khalid case) the court deviated from Najeeb and other judgements and rejected their liberal spirit. It denied bail to two of the accused in a selective manner that was rightly disagreed with in Andrabi. Even earlier, another two-judge Bench in Zahoor Ahmad Watali (2019) had, in effect, said that in UAPA cases, bail can only be denied. Justice V Gopala Gowda and many others have publicly criticised such judicial gestures.
Following the Andrabi verdict, there were two developments. First, after Khalid’s interim bail plea was rejected by the Delhi trial court, he moved the high court and got an interim bail for three days. The Supreme Court‘s pronouncement in Andrabi should have persuaded the trial court to grant interim bail. It is a tragedy that the opinions of individual judges prevail over the law laid down by superior courts. Judicial anarchy is antithetical to adjudicative discipline.
The second development is the Delhi Police’s request for referring the bail issue to a larger Bench, purportedly due to an alleged conflict of judgements. A deviation by a subsequent smaller Bench from what has been laid down by an earlier larger Bench is not a conflict warranting reference under Article 145(3). It is perhaps an instance of judicial indiscipline.
Even high courts have relied on Najeeb and other decisions in that line, setting apart Gurwinder Singh. The Kerala High Court did so in Kalidas (2025). A division Bench of the court stated, “Gurwinder Singh cannot be understood as one diluting the proposition of law laid down in Najeeb.”
Thus, the Supreme Court has only stated the obvious in Andrabi and correctly found fault with the approach of the coordinate Bench. Therefore, the request for reference, though accepted now by a two-judge Bench, has no legal basis. That apart, any expression of doubt about placing the fundamental rights above the draconian statutes has the potential to revive the ADM Jabalpur (1976) moment, which favoured suspension of such rights during the Emergency. The request for reference is, therefore, a dangerous signal.
Liberal views on bail have come from the Supreme Court only after prolonged incarceration of the accused. In sensitive cases, mere invocation of the laws against terrorism and money laundering can effectively deny individual freedom for years altogether. The trial courts or even high courts have done little when the State has misused draconian laws to suppress dissent. It’s a sad commentary on the state of liberty in India, which in theory asserts that speedy trial is a fundamental right.
Justice Siddharth Mridul said in 2021, “Bail is a constitutional recognition of the presumption of innocence.” Much remains to be done for freedom to truly become the citizen’s experience, rather than only the court’s rhetoric. It is necessary to sensitise courts across the country on the topic of human rights and personal freedom. To enable such a course, individual liberty has to be placed at the centre of the national political discourse.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)
