How the Supreme Court speaks in contradictory voices on bail

On July 8, the Supreme Court struck down bail conditions mandating that an accused person out on bail to share their Google Maps location with an investigating police officer to allow constant tracking. The court reasoned that such surveillance violated the right to privacy of the accused, guaranteed under Article 21 of the Constitution.

A bench of Justices AS Oka and Sanjay Karol had been examining the validity of such a bail condition since July 21 last year. Karol was subsequently replaced by Justice Ujjal Bhuyan.

However, since July 21, on at least two occasions, other Supreme Court benches have issued orders with the same bail condition requiring the accused to pair their phone with that of the investigating officer for constant location tracking.

Since the validity of this specific bail condition was being examined by the Supreme Court, other benches of the court should have desisted from imposing that condition in bail orders.

But when it comes to the question of bail, the Supreme Court is polyvocal, taking a range of different and often inconsistent stances. As a result, getting bail has become a judicial lottery that depends on the discretion of individual judges rather than any uniform standards.

Confusing jurisprudence

The Supreme Court has often quoted the criminal law principle that “bail is the rule and jail is the exception”. But legal scholars note that the Court is “inconsistent and unclear”.

In some bail judgements, the court has emphasised the importance of granting bail and limiting arrests to prevent unnecessary detention. But in others, it has taken a cautious approach, highlighting the potential threat to the investigation and the possibility of the accused tampering with evidence or influencing witnesses.

This has resulted in the development of a confusing bail jurisprudence. In cases with similar facts, the court has taken conflicting stances, even though judicial precedent with past judgements are expected to guide it.

As Scroll reported in May, the Supreme Court granted interim bail to Delhi Chief Minister and Aam Aadmi Party chief Arvind Kejriwal to campaign for the Lok Sabha election that month. But Jharkhand Chief Minister and Jharkhand Mukti Morcha president Hemant Soren was refused bail. Soren was later granted bail on June 28 by the Jharkhand High Court. The Enforcement Directorate has already challenged Soren’s bail in the Supreme Court.

Soren and Kejriwal were both arrested by the Enforcement Directorate earlier this year on money laundering charges.

Bail under UAPA

In cases involving the stringent Unlawful Activities (Prevention) Act, the Court’s confusion about granting bail is more pronounced.

Under this act, bail is notoriously difficult to obtain: as per the law, the accused must convince the court that there does not exist a prima facie case against them. This shifts the entire burden of proof onto the accused, a complete inversion from the presumption of the innocence of the accused, which is a cardinal principle of criminal law.

What this standard means in practice is still not clear due to conflicting judgements over the years.

In 2019, a two-judge bench of the Supreme Court held that when considering bail under the Unlawful Activities (Prevention) Act, courts need not examine the evidence against an accused but accept it at face value. This ruling considerably narrowed the scope for bail for those accused under this law.

But in separate judgements in 2021 and 2023, different two-judge benches of the Supreme Court disagreed with the 2019 verdict, stating that courts must conduct a surface-level analysis of the probative value of the evidence against an accused while deciding their bail pleas. This was aimed at balancing individual liberty with national security concerns.

In February, though, another two-judge bench of the court set the clock back, stating that jail is the rule and bail is the exception in cases involving the legislation Unlawful Activities (Prevention) Act.

Selective liberty

This inconsistent approach extends to the hearing of bail applications as well.

On July 11, the Supreme Court castigated the Delhi High Court for staying a regular bail order in separate case for over a year when it has itself stayed the order granting bail to Dalit activist Mahesh Raut in the Bhima Koregaon case for more than nine months now.

Raut is among the 16 activists and academics arrested in the case, and faces charges under the Unlawful Activities (Prevention) Act as well as the Indian Penal Code. He has been in jail since June 2018.

Raut was granted bail by the Bombay High Court on September 21 last year. The Bombay High Court said there were no reasonable grounds for believing that the accusations against Raut were even superficially true. But on September 27, the Supreme Court stayed Raut’s bail until it could decide on the National Investigation Agency’s appeal against the order.

Nine months on, the Supreme Court has yet to hear the central agency’s appeal, having adjourned the case several times. The delay on the Supreme Court’s part has kept Raut in jail even though he was granted bail.

In contrast, when television news anchor Arnab Goswami was arrested and jailed by the Maharashtra government in an abetment to suicide case in November 2020, his bail application was immediately heard by the Supreme Court, which granted him bail within eight days of his arrest.

In its judgement, the court emphasised the fundamental right to personal liberty under Article 21 of the Constitution. It reiterated that bail should be the rule, not the exception and that courts must ensure that criminal law is not used as a tool for harassment.

But activist Umar Khalid, arrested in the Delhi riots conspiracy case in September 2020, had to withdraw his bail petition from the Supreme Court in February this year after it was adjourned by the court without any substantive hearing 14 times since it was filed in October 2022.

Khalid is among several political prisoners who continue to languish in prison.

Law Commission recommendations

In its 268th report, the Law Commission of India in 2017 addressed numerous concerns and challenges in the bail system.

It recommended, among other things, the establishment of clear and comprehensive guidelines to standardise the criteria and process for granting bail, minimising judicial discretion and ensuring consistency.

It had also encouraged the use of non-custodial measures, such as house arrest or electronic monitoring, as alternatives to detention before a suspect was tried.

But none of these recommendations were taken up or given consideration in Parliament and neither did they shape the drafting of the new criminal laws that came into effect earlier in July.

A further consequence of the Supreme Court’s haphazard approach to granting bail is that lower courts follow suit. In a research paper assessing bail decisions by Delhi courts, legal academics found inconsistencies and even unjust rulings. The analysis of how courts ruled on bail applications in rape and theft cases between 2017 and 2019 observed a lack of case-by-case assessments and standardised procedures.

The authors also pointed out in their conclusion that responsibility must flow from the top and that “greater doctrinal coherence is required, particularly from the Supreme Court”.