Tilt towards personal liberty

Supreme Court judgements have prioritised personal liberty, putting bail over jail.

By Kapil Arora, Palak Nagar and Pravar Veer Misra 

The adage, ‘Bail is the rule, jail is the exception’ borders on truism in legal jurisprudence. It is embedded in the principle of personal liberty being paramount in a constitutional republic.

Yet, those of a more cynical bent, may be tempted to think that the phrase is quicker off the tongue, than in actual application- pointing to the number of incarcerated under-trial prisoners, which, as per current estimates, exceeds five lakh.

Tilt towards liberty 

However, recent judgements of the Supreme Court have been tilting the scales towards liberty. In Ram Kishor Arora (judgement dated December 15, 2023 related to arrest under the PMLA) and Prabir Purkayastha (judgement dated May 15, 2024 related to arrest under Unlawful Activities Prevention Act) the Court held that an arrestee must necessarily be provided written reasons for arrest within twenty-four hours, without which the arrest would be illegal.

In the matter of Manish Sisodia (judgement dated August 9, 2024), inordinate delay in trial was held to be a ground for bail. In Prem Prakash (judgement dated August 28, 2024), the Apex Court held that the principle ‘bail the rule, jail the exception’ will also apply to bail matters under the PMLA.

There, thus, appears to be a trend where judgements of the apex court are seemingly reclaiming lost ground in favour of liberty.

Yet another step in this direction is the judgement dated September 9, 2024 in Dhanraj Aswani, where it was held that an accused being in custody is no bar to seeking anticipatory bail in another matter. By this judgement, divergent views by high courts have been considered and the apex court has set the matter to rest-by answering in the affirmative.

Two irreconcilable goals

At the crux of any bail matter is the seemingly irreconcilable tussle between individual rights of the accused and the need for a fair trial, that is free from any pressure or negative influence- even from the accused. The presumption of criminal law that ‘innocent until proven guilty’ and the threshold for such proof being ‘beyond reasonable doubt’ only adds to the quagmire.

Arrest of a person (‘presumed’ to be innocent) even prior to a conviction in a trial, where the standard of proof is ‘beyond reasonable doubt’, is the dichotomy that leads to conflict.

A trial is not punishment

Perhaps the right way to look at it is that the trial itself should not become the punishment for an accused ‘presumed’ to be innocent. In fact, an under-trial in jail for nearly four years was granted bail by the apex court on this very ground by an order this month.

The Court also quoted Oscar Wilde "I know not whether Laws be right, Or whether Laws be wrong; All that we know who be in jail Is that the wall is strong; And that each day is like a year, A year whose days are long.”

The poignancy of this is hardly lost on anyone.

Anticipatory bail is a standalone issue

As against this, consider a situation where an application for anticipatory bail is not even maintainable solely on the ground that the applicant is in custody in another matter. This is what was being considered by the apex court in Dhanraj Aswani.

Deprivation of liberty (custody in another matter) should not by itself be a ground to further deprive liberty, that is, deny the chance to even seek bail in a different matter. The anticipatory bail in another case should be decided on its own merits. However, a person should not be denied the opportunity to apply for anticipatory bail in the matter, by the fact on the ground that the person is in custody for a different matter.

Courts may take a view to reject anticipatory bail in a matter- but no longer on the ground that such a plea is not even maintainable due to custody in another mater. Deprivation of liberty once should not perpetuate further deprivation of liberty. The judgement in Dhanraj Aswani, in our view, sets this right.

(Kapil Arora is Partner, Palak Nagar is Principal Associate and Pravar Veer Misra is Senior Associate at Cyril Amarchand Mangaldas).

Views are personal and do not represent the stand of this publication.