‘Bail Not Jail’: A Review of Supreme Court’s Shifting Bail Jurisprudence
- ByAdmin --
- 30 Jun 2025 --
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The principle of "bail, not jail" has long been a cornerstone of criminal jurisprudence in India, rooted in the idea that pre-trial detention should be an exception, not the rule. Over the years, the supreme court of india has reiterated this position, but post-2020, there has been a noticeable evolution in how this doctrine is applied—especially in cases involving dissent, national security, or economic offenses.
This article offers a balanced review of how the Supreme Court’s bail jurisprudence has shifted in recent years, highlighting key judgments, constitutional provisions, and the human impact of prolonged incarceration.
Key Developments in Bail Jurisprudence
1. Reinforcement of Liberty as a Constitutional Priority
- The Court has increasingly linked bail with Article 21 – the right to life and personal liberty.
- In cases like Satender Kumar Antil v. CBI (2022), the SC laid down detailed bail guidelines for economic offenses and undertrial prisoners.
- It emphasized that arrest must be an exception, not routine.
2. Emphasis on Procedural Fairness and Speedy Trials
- The SC has pulled up lower courts for mechanical rejection of bail applications.
- In Arnab Goswami v. State of Maharashtra (2020), the Court underscored the misuse of judicial custody as punishment.
- Bail orders now often cite Article 14 (equality before law) to stress non-discrimination in bail matters.
3. Special Consideration for Vulnerable Undertrials
- The Court has granted bail based on factors such as health, age, gender, and time spent in custody.
- In Asif Iqbal Tanha v. State (NCT of Delhi) (2021), the Delhi HC granted bail in a UAPA case, showing the shift toward rights-conscious interpretation even under stringent laws.
4. Concerns Over Bail in UAPA and PMLA Cases
- Despite progressive rulings, courts have shown hesitancy in granting bail under special statutes like Unlawful Activities (Prevention) Act, 1967 and Prevention of Money Laundering Act, 2002.
- The burden of proof often falls on the accused, undermining the presumption of innocence.
- This has led to ongoing debate about the dilution of the "bail, not jail" principle in national security and economic crime cases.
5. Judicial Push for Decongesting Prisons
- In response to COVID-19, the SC directed all states to release eligible undertrial prisoners to ease overcrowding.
- It reinforced the need to follow Section 436A of the CrPC, which mandates release of undertrials who have served half of the maximum sentence prescribed for the offense.
Legal Provisions and Principles
- Article 21: Protection of life and personal liberty – the foundation of bail as a fundamental right.
- Article 14: Ensures equality and non-arbitrariness in bail decisions.
- Section 437 & 439, CrPC: Powers of courts to grant bail.
- Section 436A, CrPC: Release of undertrials after prolonged detention without trial.
- UAPA, PMLA, NDPS Act: Special laws that often impose restrictive bail conditions.
Conclusion
The Supreme Court’s bail jurisprudence is gradually realigning with the constitutional ethos of liberty and fairness. While the principle of "bail, not jail" remains legally sound, its inconsistent application—especially under special laws—poses serious challenges to justice and individual freedom.
Recent judgments reflect a conscious effort to correct this imbalance by demanding stricter scrutiny of arrest powers, ensuring judicial accountability, and protecting undertrial rights. However, for the principle to become a consistent reality, lower courts must imbibe the same constitutional sensitivity the apex court is striving to uphold. Only then can the criminal justice system fulfill its promise of justice, not just punishment.
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