By Sanjay Raman Sinha
In three different orders and in three strokes of the pen, a fresh progressive chapter in bail jurisprudence has recently been written. As bail was granted in high-profile cases to Manish Sisodia, Hemant Soren, K Kavitha and Prem Prakash, an aide of Soren in various money laundering matters, the ground seems to have been prepared for a shift in bail norms towards personal liberty. Not that earlier bail verdicts didn’t stress on individual liberty as enshrined in Article 21 of the Constitution, but the current batch of orders have included stringent laws like PMLA, UAPA and NDPS Act for bail relief.
This fact gains importance as PMLA has been extensively used by the Enforcement Directorate (ED) to curb money laundering and related crimes. PMLA has often been criticised for its political usage as well, and the Opposition parties, which have been at the receiving end of ED misadventures, have consistently cried foul.
Meanwhile, the most high-profile case—Delhi Chief Minister Arvind Kejriwal’s plea for bail in the Delhi excise case in which he has been in jail for 145 days in total (close to five months)—is pending in the Supreme Court and awaiting the final judgment.
The high-profile matters have invariably gone to courts, and despite long incarceration, getting bail has never been easy. The PMLA provisions are stringent, particularly Section 45, which imposes twin conditions for bail. These twin conditions form the basis of “mini trial’’ which happens in the courts at the bail stage.
The twin conditions are that the court must be satisfied that the accused is not guilty of the offense, and secondly, there is no likelihood that the accused will not commit any offense if released on bail. These conditions have made bail under the PMLA extremely difficult to obtain, often resulting in prolonged pre-trial incarceration for the accused.
The Supreme Court while giving bail to Manish Sisodia case noted: “Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail.”
Sisodia was granted bail by the Supreme Court taking into account his right to speedy trial. The Court noted that there is not even a remotest possibility of trial being concluded in the future. A bench, comprising Justices BR Gavai and KV Viswanathan held: “The right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.” Justice Gavai unequivocally asserted: “Bail is a rule and refusal is an exception.” This oft-forgotten principle was reiterated in many subsequent bail orders of the apex court.
Within three days of Sisodia getting bail, K Kavitha and AAP’s former communications-in-charge Vijay Nair were also granted relief. In their pleas both of them referred to the Sisodia’s bail order. The Court had taken seriously the prolonged detention of Sisodia and had viewed it as a violation of his fundamental rights. The same logic was used in Nair’s case wherein the apex court held that Nair has been in custody for 23 months and that trial against him cannot become a punishment.
Earlier in the year in April, Sanjay Singh, a senior Aam Aadmi Party leader got bail in a money laundering case related to the alleged Delhi excise policy scam. Justice Gavai underscored the principle of the presumption of innocence until proven guilty. He emphasized that mere allegations, without supporting evidence, should not justify prolonged pre-trial detention. He also cautioned against allowing political motivations to influence judicial decisions.
In the Hemant Soren case, where the Jharkhand chief minister was embroiled in a money laundering probe related to illegal mining and other corrupt activities Justice Gavai along with other judges provided him legal succour. Justice Gavai adopted a cautious stance, ensuring that the prosecution presented a strong prima facie case before considering pre-trial detention. He pointed out the judiciary’s role in protecting against the misuse of investigative powers, particularly in politically sensitive cases.
In Sisodia’s case, the Court quoted the Roy VD vs State of Kerala verdict: “The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution, Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”
The Supreme Court took to task the lower courts for their “play-safe” approach in granting bail. The top court held that the principle of “bail as a rule, jail as an exception” must be upheld by trial courts and High Courts. The Court further observed that over a period of time, the trial courts and High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. The Sisodia order thus formed the fundamental document on which subsequent bail orders were granted.
In K Kavitha’s case, this rationale was reiterated by the Supreme Court. The Court held that the investigation was complete and as such, the custody of the accused is not necessary for the purposes of investigation. The appellant has been in custody for five months and the chances of trial getting finished in the near future is bleak, the Court observed. It said that the custody should not turn into a punishment and granted her bail.
While granting bail to Prem Prakash, Justice Gavai stressed the importance of balancing the protection of individual liberties with the need for a fair trial. The Court not only referred to the Sisodia judgment, but quoted from the Vijay Mandal Choudhary vs UOI to interpret the stringent twin conditions. It said: “It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the court which is not arbitrary or irrational, but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act.”
In a landmark ruling on August 3, 2023, the Jharkhand High Court had granted bail to Soren holding that the evidence presented by the prosecution did not sufficiently justify continued detention. The Court stated: “While the fight against money laundering is critical, it cannot come at the cost of violating the constitutional right to liberty.”
In altogether different matter, Bibhav Kumar, accused in the Swati Maliwal assault case, was also granted bail by the Supreme Court. The bench of Justices Surya Kant and Ujjal Bhuyan reiterated the same legal logic that to cross examine 51 witness will take time and accused is in custody for over 100 days.
The principle “bail is the rule and incarceration is the exception” was coined by Justice VR Krishna Iyer in the landmark verdict State of Rajasthan vs Balchand alias Baliya (1978). Thereupon, it has been followed in breach. The recent verdicts have once again reposed faith in the dictum.
The recent batch of verdicts affirming “bail is the rule and jail is an exception” has found resonance in matters beyond PMLA. In a recent case of bail in the UAPA-related matter, the bench comprising Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra noted that the alleged naxalite sympathizer has been under custody since May 6, 2020, and the early conclusion of trial was unlikely. The bench granted the accused bail.
This provides a ray of hope for the UAPA accused as well who are under prolonged custody. As per a People’s Union for Civil Liberties report of 2020, 97.2 percent of the UAPA accused are incarcerated for long periods and eventually acquitted.
In a bid to streamline the bail granting process, earlier this year, the Supreme Court had issued directions to the central government, urging it to clarify whether any new law is being prepared to streamline the process of granting bail. The Justice MM Sundresh and SVN Bhatti bench proposed that the government “may consider introducing an Act separate from the Bail Act so as to streamline the granting of bail”.
A review petition challenging the Supreme Court’s judgment upholding various provisions of the PMLA is scheduled for hearing tentatively for September 18.
Not that the Supreme Court had been lax in granting of bail. In 2019, the Court granted bail to P Chidambaram in the INX Media case. The Court held that despite seriousness of the alleged economic offense, the fundamental jurisprudence of bail remained unchanged.
In November 2020, the Supreme Court extended interim bail to journalist Arnab Goswami, asserting the primacy of personal liberty. While delivering the verdict, in 2021 judgment in Arnab Manoranjan Goswami vs The State of Maharashtra, the Court had strongly stated: “Courts must recognize that liberty, the most precious of all human rights, should not be sacrificed on the altar of the procedural law. The deprivation of liberty, even for a single day, is one too many.” Justice Chandrachud had said: “If personal freedom is violated, it will be a blow to justice.”
Today, as the Supreme Court grants bail to the long incarcerated, there is hope that the wayward ways of the enforcement agencies will be curbed. The recent spate of verdicts and the jurisprudence laid out in them could have far-reaching implications for future cases, including that of Delhi Chief Minister Arvind Kejriwal.
Meanwhile, at the time of going to press, a two-judge bench of the Supreme Court, comprising Justices Surya Kant and Ujjal Bhuyan, reserved the verdict on Kejriwal’s appeal for bail in the Delhi excise liquor case.