Sisodia, who got multiple setbacks by lower courts during the last 17 months, finally got bail as the Supreme Court reiterated the principle of ‘bail is the rule, and jail is an exception’.
Sharply criticising the lower courts, the top court said, “As observed time and again, prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.” The bench of Justices BR Gavai and KV Viswanathan said, “It is high time trial courts, high courts recognise principle of bail is the rule and jail is an exception.”
But what is this principle?
The ‘bail is the rule, and jail is the exception’ principle was first used in the 1977 landmark judgment of the ‘State of Rajasthan vs Balchand alias Baliya’ case.
The ruling underscored that bail should be denied only in circumstances where there is a risk of the accused fleeing from justice, obstructing justice, repeating offenses, or intimidating witnesses. This concept has been cited in numerous cases since, reinforcing its importance in upholding personal liberty.
“The basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offenses or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. When considering the question of bail, the gravity of the offense involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court,” the 1977 bench said.
Why ‘twin test’ of PMLA make it difficult?
The discussion around bail becomes more complex in cases involving the Prevention of Money Laundering Act (PMLA), especially after the March 2018 amendment. This amendment revived the ‘twin conditions’ under Section 45(1) of the PMLA, making it significantly harder to secure bail in money laundering cases. These conditions stipulate that when an accused in a money laundering case applies for bail, the court must first provide an opportunity for the public prosecutor to be heard.
According to Section 45, no person accused of an offense under the PMLA can be released on bail unless the public prosecutor is given a chance to oppose the bail application, and the court is satisfied that there are reasonable grounds to believe that the accused is not guilty of the offense and is unlikely to commit any offense while on bail. This effectively places the burden of proving innocence on the accused, complicating the bail process.
Before the 2019 amendments of PMLA, if someone was accused of a crime related to money laundering, the law automatically assumed they were guilty of the original crime (called the “scheduled offence”). The accused had to prove they were not involved in that crime to get bail.
Why SC quoted ‘bail is rule’ in Sisodia’s case
The Supreme Court emphasised that delay in trial and prolonged imprisonment are valid grounds for granting bail, even in cases under stringent laws like the PMLA. “Manish Sisodia is in custody for 17 months and trial has not yet commenced; this deprives his right to a speedy trial,” the top court said. “Right to speedy trial is a sacrosanct right… Bail cannot be opposed saying that the crime is serious. In matters of liberty, every day counts,” it added.
The CBI and ED had requested the Supreme Court to impose bail conditions similar to those applied to Delhi chief minister Arvind Kejriwal. However, the court rejected this plea, stating that each case needs to be treated on its own merits rather than applying uniform conditions across the board.
When the court called for ‘bail is rule’ principle
The Supreme Court has consistently reiterated this principle in various judgments. In 2011, the court granted bail to five accused in the 2G spectrum case, including Sanjay Chandra, while underscoring that bail is the rule. Similarly, in 2019, the court granted bail to P Chidambaram in the INX Media case, despite the seriousness of economic offenses, affirming that the fundamental jurisprudence of bail remained unchanged.
In November 2020, the Supreme Court extended interim bail to journalist Arnab Goswami, highlighting the critical nature of personal liberty and the principle of bail as the norm.
CJI DY Chandrachud, in his address at the All India District Judges Conference in March, voiced concerns about the declining adherence to this principle in lower courts. He emphasized the need for judges to prioritize personal liberty and adhere to the established legal standard.