Sisodia, who had faced several setbacks from lower courts in the last 17 months, finally got bail. Supreme Court Reiterated the principle of ‘bail is justice’ RuleAnd prison is an exception’.
Sharply criticising the lower courts, the apex court said, “As has been observed time and again, long imprisonment before conviction for an offence should not be allowed to become a punishment without trial.” A bench of Justices BR Gavai and KV Vishwanathan said, “The time has come for the trial courts, high courts to accept that the principle of bail is the rule and jail is the exception.”
But what is this principle?
The principle of ‘bail is the rule and jail is the exception’ was first used in the landmark judgement of ‘State of Rajasthan vs Balchand alias Ballia’ case in 1977.
This judgment emphasised that bail should only be denied in circumstances where there is a risk of the accused fleeing justice, obstructing justice, repeating the offence or intimidating witnesses. This concept has been cited in numerous cases since then, reinforcing its importance in maintaining personal liberty.
“The basic rule is bail and not imprisonment, except in circumstances where there is a likelihood of fleeing from justice or defeating the process of justice or repeating the offences or creating other nuisances such as intimidation of witnesses etc. by the petitioner seeking exemption on bail from the court. While considering the question of bail, the gravity of the offence involved and the heinousness of the offence, which may induce the petitioner to escape the process of justice, have to be weighed by the court,” the 1977 bench said.
Why is PMLA’s ‘twin test’ difficult?
The discussion about bail in cases involving the Prevention of Money Laundering Act (PMLA) has become even more complicated, especially after the March 2018 amendment. This amendment revived the ‘twin conditions’ under Section 45(1) of the PMLA, making it much more difficult to obtain bail in money laundering cases. These conditions provide that when an accused in a money laundering case applies for bail, the court must first give an opportunity of being heard to the public prosecutor.
According to Section 45, a person accused of an offence under the PMLA cannot be released on bail unless the public prosecutor is given an opportunity to oppose the bail application and the court is convinced that there are reasonable grounds to believe that the accused is not guilty of the offence and is not likely to commit any offence while on bail. This places the burden of proving innocence on the accused, thereby complicating the bail process.
Before the 2019 amendments to the PMLA, if someone was accused of a money laundering-related offence, the law automatically assumed they were guilty of the original offence (called a “scheduled offence”). To get bail, the accused had to prove they were not involved in that crime.
Why did the Supreme Court cite ‘bail is the 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 such as the PMLA. “Manish Sisodia has been in custody for 17 months and the trial has not yet begun; this deprives him of his right to a speedy trial,” the apex court said. “The right to a speedy trial is a sacrosanct right… Bail cannot be opposed on the ground that the offence is serious. In matters of liberty, every day counts,” it said.
The CBI and ED had requested the Supreme Court to impose the same bail conditions as those imposed on Delhi Chief Minister Arvind Kejriwal. However, the court rejected this plea, saying that every case should be seen on its merits and not impose the same conditions on everyone.
When the court invoked the principle of ‘bail is the rule’
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 emphasising that bail is the rule. Similarly, in 2019, the Court granted bail to P Chidambaram in the INX Media case despite the gravity of the economic offences, reaffirming that the fundamental jurisprudence of bail remains unchanged.
In November 2020, the Supreme Court extended interim bail to journalist Arnab Goswami, highlighting the vital nature of personal liberty and the principle of bail as a norm.
In his address to the All India District Judges Conference in March, CJI DY Chandrachud had expressed concern over the declining adherence to this principle in lower courts. He emphasised the need for judges to prioritise personal liberty and adhere to established legal standards.
