We, over the period of time, have been witnessing a migration of the judiciary from the well-settled principles of criminal jurisprudence, which is a presumption of innocence until proven guilty. Remand has been an important judicial function that has been treated very casually.

It has become a trend to allow all applications for remand for the sake of investigation. What we tend to forget is that the liberty of an individual is linked to the procedural laws, and violation of these laws shall lead to violation of the rights of an individual in addition to his right to a fair trial.

Right to life and Personal Liberty, along with other social factors, are of paramount importance while dealing with criminal cases and specifically with applications of bail.

The liberty of every individual has been a matter of great constitutional importance in our system of governance and it is the duty of every Court who is the custodian and the sentinel on ever vigilant guard of the freedom of an individual, to see that they are not taken away capriciously, arbitrarily or without legal justification.

That every person who is under the guard of the constitution is treated equally as guaranteed by the Constitution. The Supreme Court has time and again reiterated that “Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens.

Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.” Equal access to justice also includes equal application of Legal Principles. 


The Fundamental postulate of criminal jurisprudence is presuming that a person is innocent until he/she is proven guilty, where many factors ought to be considered before putting anyone behind the bars.

Detention of an under-trial ultimately hits on the most valued right granted by our Constitution and garland by the highest Court of Justice, time and again.

“It is well settled that pre-trial detention is not to be resorted to as a measure of punishment. The mere fact that the case prima facie involves a serious crime is not by itself conclusive. Deprivation of liberty by refusing to grant bail is not as a measure of punishment or for the punitive purpose, but for the interests of justice to the individual concerned and to the society affected.”[1]

The Hon’ble Supreme Court in one of its judgments had laid down a fundamental principle which reads as “Bail is a Rule and Jail is an exception to that rule” which found its very source from Article 21 and Article 22 of the Constitution, but the implementation, though may not be accepted by many, sounds bizarre and far-fetched in the prevailing legal system.

It has been a settled principle that just because a person is accused of having committed a certain offense, the state cannot just endlessly deprive him of his life and liberty unless in pre-trial detention his guilt is proved beyond a reasonable doubt, but how far this has been put into practice is a matter of concern.

It is very important to keep in mind that the very base of Article 21 is that the procedure followed to deprive a person of his life and liberty must be just, fair and reasonable.


According to Black’s Law Dictionary, Bail is defined as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.” This definition is applicable to all without a pinch of discrimination.

For a better understanding as to when bail becomes a matter of right and when it is not a matter of right, it is firstly very important to understand that the structure of the Criminal Procedure Code consists of cognizable and non-cognizable, bailable, and non-bailable offenses.

When an offense falls under the column of bailable offense, then in this case the bail becomes a matter of statutory right; Section 436 lays down that a person accused of a bailable offense under Indian Penal Code, 1860, can be granted bail while in other cases it becomes a discretion as laid down under Section 437, which may or may not be exercised by the court.

The Criminal Code in addition to this also provides that an investigation is to be completed within 24 hours subject to an exception under Article 22, and if the same is not done the police is required to take the accused to the nearest magistrate who may extend the custody 15 days at a time for a maximum period of 60-90 days, after which the accused is entitled to be released if the police is still not done with the investigation.

The bigger question that we pose to ourselves as well as the prevailing judicial system is that, how far are these principles laid down by the court and the procedure laid down by the code being followed?

Has the Law been made to guard individual liberty and protect pro-establishment sentiments?

Are these rights only meant for those who are privileged?

Why is the fundamental rule of Bail as a rule and Jail as an exception being used only in selective cases thereby distributing the right from the privileged to the privileged and not being put in practice in every case where its application is just and reasonable?

When we talk about equality, it not only means Equal access to justice but also Equal application of Legal Principles. Then in this case why are the Grant of bail and the application of these settled legal principles so selective?

The court in the case of Superintendent and Remembrance of Legal Affairs vs. Amiya Kumar Roy Chaudhary held that “the law of bails, have to dovetail two conflicting demands, namely, on one hand, the requirements of society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty.”

Why has bail nowadays become the end-all of criminal law? Why are the courts so hesitant in releasing the accused on bail in some matters?

Why the person can’t be deemed guilty after the trial is incarcerated and be sentenced?

In simpler terms, where a person is accused of a crime, he has a right to apply for bail, the grant of which is discretionary unless otherwise. The person may apply for bail in the Sessions Court and then in the High Court or even directly in the High Court showing sufficient reason for not approaching the Sessions Court first.

Now when we talk about the application of the fundamental principles in every case, that there is parity and thereby very well know that every criminal case has and presents its own factual matrix and therefore each case may be dealt with depending on the facts and circumstances of that particular case.

So does that mean binding precedents do not hold any value in criminal cases?  

Absolutely not, though at a lesser grade than its dependence on civil matters, although binding precedents do hold a value in criminal cases as well. Bail which has ultimately been a gift to the privileged in today’s time is given the utmost importance and is considered to be the end of a criminal case.

When we say India is a Diverse Country, why should one individual be identical to the other in whatever he thinks or speaks?

Why can’t they be different?

Why can’t there be a separate or a diverting narrative?

Why can’t the people exercise their right of dissent?

Why are draconian laws applied upon those individuals who exercise their right of dissent?

Why are individuals who criticize the Government deprived of their voices?

Similarly, why are these discretionary powers of granting bail so very selective?

Are the laws and the criminal code not equally applicable to all?

There are questions, It is high time that the courts, especially the Supreme Court, intervene and protect Free speech guaranteed under the Constitution and can be equally exercised by all and that citizens cannot be incarcerated in such a manner.

Leaving aside the trend of bizarre bail conditions and just focusing on the discrimination in the exercise of the power to grants bail, the courts have in recent times touched ultimate heights, where the division bench of the supreme court passed an order in the case of the Republic TV Chief Editor, who was accused of abetment of suicide in 2018, wherein the matter was brought up to the board within a span of just a few days, while on the other hand sadly for an Aam Aadmi it would take weeks, months, or even years to bring that matter on board.

While on one hand, it’s just another thing for the privileged, on the other hand for a common man, acquiring bail is becomes a tough task. Once the FIR has been registered, the suspect and his fellow relatives are left in a no man’s land and at the mercy of the police officers, their lawyers, and the Court.

He is at the mercy of an endless procedure. The harsh reality is that quick bail for the rich and powerful is not difficult but the same for the poor and the underprivileged becomes way more difficult.

So do we conclude that the right to life and liberty is only for the rich and the privileged and not the poor Aam Aadmi?

A clear answer to this is NO. The only purpose of detention is to ensure easy proceedings by availing the accused of trial and if such presence of the accused is ensured then detention must be avoided at any cost and there must be strict adherence to the fundamental principles laid down by the court and respect to everyone’s life and liberty on an equal footing.


The division bench of the Supreme Court in the Anvay Naik-Kumud Naik suicide case has held that the Detention of an individual infringes the right to life and liberty guaranteed under Article 21.

It is indeed a path-breaking and a laudable judgment as the rule of law in this case prevailed and the liberty of an individual was protected, however, this speed and consistency has not been observed in the regular course of work which makes it a matter of concern as the Constitution not only guarantees right to life and liberty but also grants equal justice to all.

All I would say is that we should not forget that guilt of a person can be established only after the trial. We see many cases where the accused are acquitted after trial. Hence, instead of labeling a person as an offender even before his guilt has been established, it is the thinking that has to be brushed aside.

The Courts should not be hesitant in granting bail to the privileged as well the underprivileged. Bail should not be made a be-all, end-all phase in criminal law.

There is a dire need of a time-bound approach so that the accused are not left languishing in jail and later acquitted, or else, the doctrine of “Bail being Rule and Jail being an exception” will have no meaning if Courts do not decide the bail applications on priority and in a time-bound manner. And lastly a strict adherence to the principle of:

1) Bail as a rule FOR ALL, Jail as an Exception FOR ALL and not just selected section of the society

2) Presumption of innocence until proven guilty. 



By Nathan Gomes, LLM (Criminal & Security Law.), GLS Law College, Ahmedabad.