In an extraordinary institutional moment at the Supreme Court, a clash of judicial views between two coordinate benches over bail jurisprudence under the Unlawful Activities (Prevention) Act (UAPA) spilled into the open on Friday, with one bench formally asking the Chief Justice of India (CJI) Surya Kant to constitute a larger bench for an “authoritative resolution” of the law.The development came days after another two-judge bench criticised the January 5 judgment in the Delhi riots conspiracy case involving Umar Khalid and Sharjeel Imam. (ANI)A bench of justices Aravind Kumar and PB Varale, while hearing bail pleas by Delhi riots accused Tasleem Ahmed and Khalid Saifi, referred to the CJI the larger question of how the Supreme Court’s landmark three-judge ruling in Union of India Vs KA Najeeb (2021) ought to be applied in UAPA cases involving prolonged incarceration and delayed trials.The development came days after another two-judge bench – comprising justices BV Nagarathna and Ujjal Bhuyan – openly criticised the January 5 judgment authored by Justice Kumar in the Delhi riots conspiracy case involving Umar Khalid and Sharjeel Imam, holding that the earlier ruling had adopted an unduly restrictive understanding of bail under the anti-terror law.Also Read | Bail, liberty, and a Supreme Court split in reading UAPAFriday’s order effectively transformed that judicial disagreement into a formal institutional reference, setting the stage for a constitutionally significant reconsideration by a larger bench of how courts must reconcile national security concerns with personal liberty in anti-terror prosecutions. Also, it may finally settle the increasingly visible doctrinal divide that has emerged within the Supreme Court itself over the meaning and reach of KA Najeeb.Without directly adjudicating upon the correctness of the criticism levelled against its earlier decisions, the justice Kumar-bench took a pointed view that a coordinate bench ought not to undermine another bench of equal strength through “strong observations” and should instead refer the matter to a larger bench if it harbours doubts regarding the correctness of an earlier ruling.“Judgments of this court are not to be answered by counter-observations from another bench of equal strength. The discipline of precedence demands a higher institutional method,” noted the bench.It added: “Where a coordinate bench entertains a reservation about an earlier judgment of another coordinate bench, particularly on the application of a binding 3-judge bench decision, the proper course is well settled. The matter must ordinarily be placed before the Chief Justice of India for the constitution of an appropriate bench.”The bench said that while disagreements between coordinate benches were “neither unusual nor undesirable”, institutional discipline required that such differences be resolved through an authoritative pronouncement by a larger bench rather than through competing judicial observations.“If a coordinate bench has expressed reservation about the manner in which KA Najeeb was followed by another coordinate bench, the proper answer is not further reservation but authoritative resolution,” justice Kumar observed.The bench accordingly directed that the matter be placed before the CJI for constitution of an appropriate larger bench “to clarify or expound the position of law laid down in KA Najeeb, particularly in the backdrop of rigour of Section 43D(5)” of the UAPA.The court simultaneously granted interim bail for six months to Tasleem Ahmed and Khalid Saifi in the Delhi riots larger conspiracy case, while imposing conditions including a prohibition on interacting with the media or commenting publicly on the proceedings.The reference order marks a dramatic escalation in an increasingly visible divergence within the Supreme Court over the balance between personal liberty and national security in UAPA prosecutions.Earlier this week, the Nagarathna-Bhuyan bench, while granting bail to Jammu & Kashmir resident Syed Iftikhar Andrabi in a narco-terror case investigated by the National Investigation Agency, delivered one of the strongest judicial critiques in recent years of a coordinate bench ruling.That bench emphatically reiterated that “bail is the rule and jail is an exception” even under UAPA and expressed “serious reservations” about the January 5 judgment in the Delhi riots conspiracy case involving Umar Khalid and Sharjeel Imam.Also Read | Clearing the air on right to bailThe January ruling by justices Kumar and Anjaria had denied bail to Khalid and Imam while granting relief to five co-accused including Gulfisha Fatima, Meeran Haider and Shifa-ur-Rehman.In Andrabi, justice Bhuyan held that the Delhi riots judgment and the earlier ruling in Gurwinder Singh (2024) appeared to have diluted the constitutional force of the Supreme Court’s three-judge bench ruling in KA Najeeb, which recognised that prolonged incarceration and delay in trial can justify bail notwithstanding the statutory embargo under Section 43D(5) of UAPA.“A judgment rendered by a bench of lesser strength is bound by the law declared by a 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,” the Andrabi judgment had said.The judgment had further criticised what it described as smaller benches “progressively hollowing out” the constitutional protections recognised in KA Najeeb without expressly disagreeing with it.On Friday, however, the Kumar-Varale bench appeared to push back against the manner in which those criticisms were articulated.The bench stressed that KA Najeeb could not be treated as a “mathematical formula” mandating bail in every case of prolonged incarceration under UAPA.According to the court, its earlier January judgment in the Delhi riots case had not diluted KA Najeeb but had instead treated it as a “principled safeguard” requiring individualised assessment of each accused.The bench pointed out that while bail had been granted to five accused in the Delhi riots conspiracy case, it had simultaneously been denied to Umar Khalid and Sharjeel Imam after examining their alleged roles separately.“The present reference is necessitated because KA Najeeb deserves application with clarity, consistency, and institutional fidelity which a binding 3-judge bench commands,” the bench observed.The court cautioned against adopting either of two “extreme positions” — one where prolonged incarceration alone automatically results in bail regardless of national security considerations, and the other where statutory rigours eclipse constitutional protections under Article 21.“The question is how Article 21 is to be applied when Parliament has introduced restrictions on bail in matters concerning national security.”Additional Solicitor General SV Raju and advocate Rajat Nair, appearing for the Delhi Police, had argued before the court that prolonged incarceration alone cannot be treated as a blanket ground for bail under statutes prescribing stringent twin conditions.