DC Edit | Bail Can Be Seen Almost As A Fundamental Right

The Supreme Court’s order on Monday upholding an earlier one by the same court rejecting the stringent bail conditions in special laws as reason to deny bail has come as a big relief to the victims of their misuse. It also raises the hope that Parliament will stop enacting laws that curtail the freedoms guaranteed under Articles 21 and 22 of the Constitution so that the executive stops throwing people in jail in violation of the principles that one is presumed to be innocent until proven guilty and that bail is the rule and jail is the exception. It also reminds the courts in the country against rejecting bail applications violating the Supreme Court order and the Constitution.

Articles 21 and 22 of the Constitution are the guarantees of the citizen against the might of a vengeful State and its handlers. Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law” insisting that the judicial process is followed in detaining a person; Article 22 proscribes arbitrary arrest and detention. Taken together, it gives the judiciary, including the constitutional court, a major say in deciding whether a person must be deprived of his rights. It shows that this country has travelled a lot on the path of justice and away from the tyrannical times and the State’s arbitrary ways of dispensing justice.

The executive arm of the government, however, has never been very pleased with this liberty enjoyed by the people, and hence the introduction of the special laws such as the UAPA and the Prevention of Money Laundering Act, 2002. They came with conditions that made it next to impossible for a court to enlarge an accused on bail. Section 43 (D) (5) of the UAPA insists that court should not release one on bail if “there are reasonable grounds for believing that the accusation against such person is prima facie true”. Section 45 of the PMLA states that a court can grant bail “if it is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”.

These laws stand administration of criminal justice in a democracy on its head. In fact, the Supreme Court had in 2017 struck down Section 45 of the PMLA finding it ultra vires the Constitution, but the government brought it back to life with some manoeuvring of the Act. The court had held in 2021 that the stringent provisions for bail under UAPA do not completely eliminate a constitutional court's power to grant bail to protect fundamental rights. It had also warned against turning pre-trial detention into a punishment for the accused before they are convicted.

The message is clear: Fundamental rights guaranteed by the Constitution are supreme and inviolable, and there are no short cuts bypassing the process of the law. There is a message each for the legislature, the executive and the judiciary in this order. Let them take the right lesson from it.