The Supreme Court has re-emphasised the ‘bail is rule, jail is exception’ principle – which it underlined while granting bail last week to ex Delhi Deputy Chief Minister Manish Sisodia – that courts must follow, even when charges are filed under special statutes like anti-terror law UAPA.
The reference was to one of the truly landmark moments in Indian jurisprudence, dating back to 1977 when Justice Krishna Iyer lay down what many see as a cardinal rule, that ‘bail is the rule…’
And, in a significant statement today, a bench of Justice Abhay S Oka and Justice Augustine George Masih seemed to channel that sentiment, stating that “once a case has been made out for grant of bail… the court cannot decline relief”.
“When a case is made for a grant of bail, the courts cannot have hesitation… the allegations of the prosecution may be very serious but the court’s duty is to consider case for grant of bail in accordance with the law… ‘bail is rule and jail exception’ is a settled law,” the judges said.
To deny bail in cases where a legal argument is successfully made is “a violation of rights guaranteed under Article 21 (which relates to the right to life and personal liberty) of our Constitution”.
A bench of Justice SB Pardiwala and Ujjal Bhuyan made a similar observation last month in an unrelated UAPA accused’s bail hearing. They said the right to life and personal liberty, as enshrined under Article 21, is “overarching” and statutory restrictions may be overruled in such cases.
READ | Restrictive Statutory Provisions Don’t Prevent Bail: Supreme Court
The Supreme Court’s reminder today came as it heard the bail plea of retired police constable Jalaluddin Khan, who was booked under the UAPA and sections of the (now defunct) Indian Penal Code for renting part of his house to alleged members of the banned Popular Front of India, or PFI.
Federal agencies claimed Jalaluddin Khan was part of a criminal conspiracy to carry out acts of terror and violence for the purpose of endangering the unity and integrity of the country, including plans to cause disturbances when Prime Minister Narendra Modi visited Bihar in 2022.
The Supreme Court, however, disagreed with the presented material and claims, observing there was nothing to show Mr Khan took part in, or committed unlawful activities, as defined in the UAPA.
The court, therefore, ordered the release of Mr Khan, who had been turned away from both the special court and the Patna High Court in Bihar, which cited the severity of the offence, the risk of it being repeated, and the potential for evidence-tampering, as reasons to keep him behind bars.
This is not the first time Indian courts have referenced the ‘bail is rule, jail is exception’, whether in the context of UAPA cases or otherwise. For example, the Delhi High Court, in 2021, granted bail for five accused in a case related to the murder of a police constable during the riots in the city.
READ | “Bail Is Rule, Jail Exception”: Court On Bail For Delhi Riots Accused
Justice Subramoniam Prasad said then “petitioners cannot be made to languish behind bars” and that veracity of allegations levelled against them could be “tested during the trial”.
It was also referenced by Delhi Education Minister Atishi after Mr Sisodia was released; “He had been incarcerated for 17 months. The Supreme Court clearly underlined the fact ‘bail is the rule and jail is the exception’. This raises a lot of questions about the entire system of arrests by agencies…”
In Mr Sisodia’s case the charges related to money laundering, although, under the Prevention of Money Laundering Act too bail is difficult thanks to the ‘twin condition’ outlined by Section 45(1).
There is, though, also the point of another two-judge top-court bench – Justice Aravind Kumar and Justice MM Sundresh – to consider. In this case – bail was sought by a man who allegedly promoted the Khalistani terror movement – the court said the wording of sections of the UAPA “suggests intention of the Legislature to make bail the exception and jail the rule”.
The court then noted that grant of bail under UAPA is “severely restrictive” given the various conditions to be satisfied and that courts only needed “prima facie” satisfaction.
The UAPA has been widely criticised – by the opposition, rights activists, and others – for making grant of bail difficult. Applicants must meet multiple criteria, including arguing the charges are false.
In addition, they must also satisfy the standard triple test – i.e., s/he is not a flight risk and will not influence witnesses or tamper with evidence.
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