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

The Supreme Court’s decision on Monday to uphold an earlier judgment of the same court rejecting stringent bail conditions in special laws as grounds for refusing bail came as a huge relief to victims of their abuse. This also raises the hope that Parliament will stop passing laws restricting the freedoms guaranteed under Articles 21 and 22 of the Constitution, so that the executive will stop imprisoning people in violation of the principles of innocent until proven guilty and that bail is the rule and prison is the exception. It also reminds the country’s courts that bail applications contrary to the Supreme Court decision and the Constitution should not be rejected.

Articles 21 and 22 of the Constitution are the citizens’ assurance against the power of a vengeful state and its administrators. Article 21 states that “No one shall be deprived of his life or personal liberty except in accordance with the procedure established by law” and insists that judicial process be followed when detaining a person; Article 22 prohibits arbitrary arrest and detention. Taken together, they give the judiciary, including the constitutional court, a significant say in deciding whether a person should be deprived of their rights. This shows that this country has come a long way towards justice, moving away from cruel times and the state’s arbitrary methods of dispensing justice.

But the executive arm of the government was never very happy with this freedom enjoyed by the people and hence the enactment of special laws like UAPA and the Prevention of Money Laundering Act, 2002. These came with conditions that made it nearly impossible for a court to grant bail to a defendant. UAPA Section 43 (D) (5) insists that the court should not grant bail to a person “if there are reasonable grounds to believe that the charge against such person is prima facie true”. Section 45 of the PMLA states that a court may grant bail “if it is satisfied that there are reasonable grounds to believe that the person is not guilty of such offense and is not likely to commit any offense during the period on bail.”

These laws subvert the administration of criminal justice in democracies. In fact, the Supreme Court had struck down Article 45 of the PMLA in 2017, finding it unconstitutional, but the government brought it back to life by making some maneuvers in the Act. The court had in 2021 ruled that the stringent provisions on bail under the UAPA do not completely take away the power of the constitutional court to grant bail to protect fundamental rights. He also warned against turning pre-trial detention into a punishment for defendants before they are sentenced.

The message is clear: Fundamental rights guaranteed by the Constitution are paramount and inviolable, and there are no shortcuts to circumvent the legal process. In this order, there is a message for the legislature, executive and judiciary. Let them take the necessary lesson from this.