The term ‘bail’, as defined by P. Ramanatha Aiyer in the Advanced Law Lexicon is: “Bail is releasing a person who has been arrested or imprisoned in exchange for security for his attendance on a specific day and place, which security is known as bail”.[1]
Bail is a statutory right provided under the Criminal Procedure Code, 1973 (CrPC). A distinction, however, exists between bailable and non-bailable offences. In the case of bailable offences, bail is a matter of right, and a person accused of such an offence under the Indian Penal Code, 1860 (IPC) can be granted bail under Section 436 CrPC. In contrast, in non-bailable offences, no such right accrues; under Section 437 CrPC, the discretion to grant bail vests in the court.
Broadly speaking, bail may be described as a discretionary relief aimed at securing the presence of the accused during trial while avoiding unnecessary incarceration. The underlying purpose of arrest is not punitive but preventive—to ensure the accused does not abscond or obstruct justice. In recent years, however, the overcrowding of prisons due to a large population of undertrial prisoners has reignited the debate: does denial of bail amount to denial of justice? If the presence of the accused can be ensured without detention, refusing bail becomes an unjustifiable violation of the right to liberty.
When Bail is the Rule and Jail is the Exception
In the landmark judgment of State of Rajasthan v. Balchand alias Baliya,[2] , Justice V.R. Krishna Iyer famously laid down the principle that “the basic rule may perhaps be tersely put as: bail, not jail.” While granting bail to the petitioner, the Court underscored that, unless there are compelling circumstances such as risk of flight, tampering with evidence, repeating offences, or intimidating witnesses, bail ought to be the norm and incarceration the exception. This principle has since become the bedrock of bail jurisprudence in India.
Is Bail a Right?
Right to Liberty-
The right to liberty has been a focal point in the jurisprudence on bail. In Siddharam Satlingappa Mhetre v. State of Maharashtra,[3], The Hon’ble Supreme Court highlighted the expansive scope of Article 21 of the Constitution of India, emphasising the need to strike a balance between personal liberty and societal interest. The Court held that detaining an individual without compelling reasons amounts to an infringement of liberty and runs contrary to the principles of natural justice. Unless custodial interrogation is indispensable or there is a demonstrable risk of absconding or obstructing justice, denial of bail at the pre-trial stage violates constitutional guarantees.
This principle was further reinforced in Satender Kumar Antil vs CBI & Anr.,[4]., where the Supreme Court reiterated that bail is the rule and jail the exception. The apex court declared:
“A duty is enjoined upon the agency to complete the investigation within the time prescribed, and failure would enable the release of he accused. The right enshrined is absolute and indefeasible… Such a right cannot be taken away even during unforeseen circumstances.”
Presumption of Innocence until proven guilty
The presumption of innocence until proven guilty is another cornerstone of bail jurisprudence. In Dataram Singh vs State Of Uttar Pradesh,[5], Justice Madan B. Lokur observed that the “presumption of innocence is a fundamental precept of criminal jurisprudence” and that “courts should take certain pertinent considerations into account before sending an accused to prison.”
When Jail is the Rule and Bail is the Exception
Under Unlawful Activities (Prevention) Act, 1967 (UAPA)
Recently, the Supreme Court in Gurwinder Singh vs. State of Punjab,[6] laid down a different position with respect to cases under the UAPA. While holding the view that “jail is the rule and bail is the exception,” the apex court observed that:
“…The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase – ‘bail is the rule, jail is the exception’ – unless circumstances justify otherwise – does not find any place while dealing with bail applications under UAP Act. The ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5) – ‘shall not be released’ in contrast with the form of the words as found in Section 437(1) Code of Criminal Procedure – ‘may be released’ – suggests the intention of the Legislature to make bail, the exception and jail, the rule.”
Hence, Section 43D(5), as discussed in Gurwinder Singh’s case, operates to deny bail in all UAPA cases where there exists a prima facie truthful case.
However, the Supreme Court in several decisions has clarified that, in consonance with the constitutional mandate, bail under UAPA, though restrictive, is not entirely unreachable. In Union of India (UOI) vs. K.A. Najeeb,[7] while dismissing the appeal filed by the National Investigation Agency (NIA), the Court held:
“…It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statute as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised.”
Despite this constitutional protection, it is evident that the UAPA can easily be misused by the police, even in cases with no genuine scope for invoking anti-terror provisions. Since UAPA provisions can be incorporated to make accusations appear prima facie true at the ipse dixit of the police, the law remains open to abuse.
Under Prevention of Money Laundering Act, 2002 (PMLA)
Economic offences have historically been treated with particular gravity in Indian jurisprudence. In this context, the recent arrest of former Delhi Chief Minister Arvind Kejriwal under the provisions of the PMLA makes an examination of the bail framework Under this law especially relevant.
Section 45 of the PMLA imposes a stringent standard for bail. It introduces the concept of reverse onus, requiring the accused to satisfy additional conditions before being released by the competent court. Despite amendments, the provision continues to be invoked in a manner that keeps persons accused of money laundering in prolonged custody, rendering the grant of bail extremely difficult—if not virtually impossible.
This framework has generated serious concerns. The reverse burden effectively compels an accused to establish innocence, thereby undermining the fundamental principle that the prosecution must prove guilt. When combined with prolonged delays by the Enforcement Directorate (ED) in completing investigations, it has resulted in accused persons languishing in judicial custody for more than a year. Courts have repeatedly stressed that even strong suspicion cannot substitute for evidence. To deprive an individual of liberty for an indefinite period under such circumstances amounts to a violation of the rights guaranteed to every accused under Article 21 of the Constitution.
Conclusion:
A report by The Hindu[8] observed: “The Unlawful Activities (Prevention) Act (UAPA), Prevention of Money Laundering Act (PMLA), and Section 153A of the Indian Penal Code… have a common link. In recent days, cases filed under these laws and sections are rising, while convictions have remained poor. Under the UAPA, 4,690 persons were arrested between 2018 and 2020, but only 3% were convicted… Moreover, under the UAPA and PMLA, getting bail is tough, and so the accused spend most of the trial period inside prison. For instance, of the 1,338 persons arrested under the UAPA in U.P. between 2018 and 2020, only 6% got convicted, while none of the other 94% got bail.” This data reveals a troubling reality: even in cases where the application of the UAPA is not justified, its provisions—and those of similar laws—have often been misused to keep the accused incarcerated without bail.
The warning given by Justice V.R. Krishna Iyer in relation to the Terrorist and Disruptive Activities (Prevention) Act remains profoundly relevant: “When reckless illiberalism is write large on the face of the enactment, the scrutiny of its legality also has to be too stern and searching to be scared into cowardly surrender merely because of patriotic phrases like unity, integrity, security or sovereignty of India or dreadful diction like terrorism, bomb, dynamite, and explosives, which may create terror in a panicky or pusillanimous judiciary.”
Thus, the misuse of harsh laws is far more dangerous than the misuse of ordinary statutes. When such provisions are applied in cases unrelated to terrorism, they not only cause grave injustice to the accused but also undermine the credibility of the law itself.
[1]Ramanatha Aiyer, Advanced Law Lexicon, 6th Edn., New Delhi, Lexis Nexis, 2019
[2]State of Rajasthan v. Balchand alias Baliya, AIR 1977 SC 2447
[3]Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312
[4]Satender Kumar Antil vs CBI & Anr, (2022) 10 SCC 51
[5]Dataram Singh vs State Of Uttar Pradesh, AIR 2018 SC 980
[6]Gurwinder Singh vs. State of Punjab, 2024 SCC OnLine SC 109
[7]Union of India (UOI) vs. K.A. Najeeb, AIR 2021 SC 712
[8] V. Radhakrishnan, “Data| UAPA, PMLA, Section 153A: Rise in cases, low on convictions”, The Hindu,
September 10, 2022. http://www.thehindu.com/data/data-uapa-pmla-section-153a-what-do-these-laws-have-in-common/article65871393.ece
