Bail is a rule and jail is an exception is no more a rule in India
Introduction
The principle that “bail is the rule, jail is the exception” has long been a cornerstone of Indian criminal jurisprudence, grounded in the presumption of innocence and the fundamental right to life and personal liberty under Article 21 of the Indian Constitution. This doctrine aims to ensure that individuals are not unnecessarily deprived of liberty before their trial. However, recent judicial trends and practical realities indicate that this principle is increasingly rhetorical. Courts, particularly trial courts, now lean toward incarceration as the default, with bail becoming an exception. The plight of undertrial prisoners, overcrowded jails, judicial hesitancy in granting bail, underscore this troubling shift.
Historical context: The evolution of bail jurisprudence
The concept of bail in India draws from English common law, where the presumption of innocence was recognized as early as the Magna Carta (1215), safeguarding against arbitrary detention. In India, the Code of Criminal Procedure (CrPC) of 1898 first codified bail provisions, later refined in the CrPC, 1973. The Indian Constitution’s framers prioritized liberty, and the judiciary reinforced this through landmark rulings. In the post-Emergency era, the Hon’ble Supreme Court’s judgment in State of Rajasthan v. Balchand (1977) crystallized the principle with Justice V.R. Krishna Iyer’s assertion that “the basic rule may perhaps be tersely put as bail, not jail.” This was echoed in Gudikanti Narasimhulu v. Public Prosecutor(1978), where Justice Iyer stressed that deprivation of liberty must be justified, not assumed. Over time, courts consistently held that bail should not be denied punitively, and pre-trial detention should be reserved for exceptional cases involving risks like absconding, evidence tampering, or witness intimidation and custodial interrogation in some cases.
Presumption of innocence in criminal jurisprudence
The presumption of innocence is a fundamental tenet of criminal law, recognized globally in Article 11 of the Universal Declaration of Human Rights (1948) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory. Indian courts have upheld this principle, notably in Dataram Singh v. State of Uttar Pradesh(2018), where the Hon’ble Supreme Court emphasized that liberty is a fundamental right and that bail decisions must balance justice with the accused’s freedom. However, in practice, this principle is often undermined by concerns over “national security,” “public order,” or the “seriousness of the offence.” Bail hearings increasingly resemble mini-trials, with courts adopting a cautious approach that prioritizes detention over liberty, eroding the presumption of innocence.
Case Study: Umar Khalid
The case of Umar Khalid, a former Jawaharlal Nehru University student leader, illustrates this erosion. Arrested in September 2020 under the Unlawful Activities Prevention Act (UAPA) for alleged conspiracy in the 2020 Delhi riots, Khalid has faced repeated bail denials despite the challenges of proving conspiracy charges. The Sessions Court has twice denied to grant him bail, citing prima facie serious allegations. The Hon’ble Delhi High Court has also declined to enlarge him on bail twice, and he had to withdraw his bail filed before the Hon’ble Supreme Court despite robust legal representation. This case highlights two critical issues: first, stringent laws like UAPA effectively nullify the presumption of innocence and the right to bail; second, judicial hesitancy, even at higher levels, perpetuates prolonged detention without trial.
Case Study: Siddique Kappan
Siddique Kappan, a journalist from Kerala, was arrested in October 2020 under the UAPA and Prevention of Money Laundering Act (PMLA) while on his way to report on the Hathras rape case. Despite his deteriorating health and weak evidence presented against him, his bail applications were repeatedly rejected by the lower courts. It took almost two years before the Hon’ble Supreme Court finally granted him bail in September 2022, observing that the evidence did not justify his prolonged detention. His case demonstrates how stringent statutes and judicial hesitancy keep individuals behind bars even in the absence of compelling reasons to deny bail.
Case Study: Stan Swamy
Father Stan Swamy, an 84-year-old Jesuit priest and tribal rights activist, was arrested in October 2020 in the Bhima Koregaon–Elgar Parishad case under the UAPA. Despite being a Parkinson’s patient who required medical support, his repeated bail pleas on medical grounds were denied by the Special National Investigation Agency (NIA) Court and later by the Hon’ble Bombay High Court. Tragically, he passed away in July 2021 while still in judicial custody, without a fair opportunity to defend himself at trial. His case underscores the human cost of an overly cautious bail regime and how denial of bail becomes a form of punishment in itself.
Case Study: Aryan Khan
The arrest of Aryan Khan in October 2021 under the Narcotic Drugs and Psychotropic Substances (NDPS) Act illustrates another aspect of bail denial. Although no drugs were recovered from his possession and the prosecution failed to establish direct involvement in drug trafficking, the trial court rejected his bail application multiple times. The Bombay High Court finally intervened, holding that there was no evidence of conspiracy or common intent. This case highlights how, even for high-profile individuals with access to strong legal representation, bail is treated as an exception rather than a rule, especially under stringent special statutes like NDPS.
Case Study: Rhea Chakraborty
In the aftermath of actor Sushant Singh Rajput’s death, Rhea Chakraborty was arrested in September 2020 under the NDPS Act for allegedly procuring small quantities of marijuana. Despite the minor nature of the alleged offence, her bail plea was rejected by the trial court, and she remained in custody for nearly a month until the Hon’ble Bombay High Court granted her bail. The court specifically observed that “no woman should be subjected to incarceration merely on the basis of vague allegations.” This case shows how sensationalism and societal pressure often push courts toward denial of bail, regardless of the actual gravity of the offence.
Case Study: Bhima Koregaon Accused
Several accused in the Bhima Koregaon case, including lawyers, academics, and activists, have been incarcerated since 2018 under UAPA without trial. Despite repeated bail applications, courts have largely refused relief, citing the seriousness of the allegations. The prolonged detention of these individuals, many of whom are elderly and suffer from medical issues, reveals how special statutes create a near-impossible threshold for bail, diluting the constitutional guarantee of personal liberty.
Undertrial prisoners
India’s prisons are overcrowded with undertrial prisoners, who constitute nearly 77% of the prison population, according to the National Crime Records Bureau (NCRB) Prison Statistics Report 2022. Many languish in jail for years, often for minor offences, sometimes exceeding the maximum punishment for their alleged crimes. This reality underscores the collapse of the “bail is the rule” principle. Key contributing factors include:
1. Judicial Reluctance: Trial courts often deny bail out of caution, fearing accusations of leniency or corruption.
2. Stringent Laws: Statutes like UAPA, NDPS, and PMLA impose reverse burdens of proof and restrictive bail conditions, making release nearly unattainable.
3. Socio-economic Barriers: Many undertrials, often from marginalized communities, lack the resources for bail bonds or competent legal representation. While the judiciary upholds liberty in theory, bail remains elusive for the poor and politically marginalized.
The state of Indian jails: Overcrowding and inhuman conditions
Prison overcrowding exacerbates the injustice of prolonged detention. NCRB data indicates that India’s prisons house over 5.5 lakh inmates against a capacity of 4.2 lakh, with occupancy rates exceeding 130% in many states. This leads to inhumane conditions, including inadequate food, sanitation, healthcare, and ventilation. In reInhuman Conditions in 1382 Prisons (2016), the Hon’ble Supreme Court acknowledged these violations and ordered reforms, but progress remains limited due to funding shortages, bureaucratic inertia, and weak oversight. For undertrials, presumed innocent, such conditions constitute punishment without conviction, violating Articles 14 (equality) and 21 (life and liberty) of the Constitution.
Judicial reluctance: The bail crisis at the ground level
The bail crisis is most pronounced at the trial court level, where district judges, burdened by heavy caseloads and public scrutiny, often deny bail. They treat bail as a privilege rather than a right, adopting a hyper-technical approach. The Hon’ble Supreme Court in Satender Kumar Antil v. CBI (2022) issued guidelines to curb unnecessary arrests and detentions, but implementation remains inconsistent. Stringent laws further complicate matters, turning bail denial into the norm.
Conclusion: Restoring the balance
The maxim “bail is the rule, jail is the exception” no longer reflects reality in India. Incarceration has become the default, driven by stringent laws, judicial caution, and systemic failures. The case studies discusses, exemplifies this trend, while countless undertrials face similar denials of liberty. To restore balance, the following reforms are proposed:
• Judicial Sensitization: Regular training for trial judges to reinforce constitutional protections and bail jurisprudence.
• Bail Reform Legislation: Amend the CrPC and special laws to simplify bail provisions and remove restrictive conditions like “twin conditions” and focus on “triple test” for bail.
• Strengthened Legal Aid: Enhance legal aid services to ensure access for marginalized undertrials.
• Prison Reforms: Address overcrowding through increased capacity, better facilities, and alternatives like house arrest or electronic monitoring.
• Accountability Mechanisms: Appellate courts should actively review arbitrary bail denials, holding judicial officers accountable.
• Technology Integration: Use video conferencing and digitized records to expedite bail hearings.
Final thoughts
A democracy’s strength lies in how it protects its most vulnerable. Liberty is a constitutional right, not a privilege. The judiciary, legislature, and executive must work together to ensure that “bail is the rule” is not just a legal maxim but a lived reality for all.
-Adv. Somesh Pandey
SUO Law Office
