Personal Liberty vs. Procedural Rigour: Evolving Judicial Trends in Bail under Stringent Statutes

Bail jurisprudence in India has historically been anchored in the principle that “bail is the rule and jail is the exception.” This foundational doctrine flows from the constitutional guarantee of personal liberty enshrined under Article 21 of the Constitution of India, which prohibits the deprivation of life or liberty except in accordance with the procedure established by law. Courts have consistently reaffirmed that a person is presumed innocent until proven guilty and that pre-trial detention must only be used sparingly.

The Hon’ble Supreme Court in P Chidambaram’s has reiterated the ‘triple test’ that needs to be followed while deciding a bail petition. The judgment provides the following parameters to be considered for grant of bail:

1. That the accused is not at flight risk.

2. That there are no chances of tampering with evidence.

3. There is no likelihood that the accused will influence the witnesses. 

This liberal approach, however, is significantly modified when dealing with certain special statutes that impose stringent statutory restrictions on the grant of bail. Legislations such as the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Prevention of Money Laundering Act, 2002 (PMLA), and the Unlawful Activities (Prevention) Act, 1967 (UAPA), provides stringent and elevated thresholds for bail, in some cases effectively reversing the presumption of innocence at the pre-trial stage. For instance, Section 37 of the NDPS Act and Section 45 of the PMLA impose a “twin conditions” test, requiring the court to be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence and that they are not likely to commit any offence while on bail.

The constitutional validity of these provisions came under scrutiny in Nikesh Tarachand Shah v. Union of India, where the Hon’ble Supreme Court struck down the twin conditions in Section 45 of the PMLA. The Court held that the provision, in its original form, violated Articles 14 and 21 of the Constitution. In response, Parliament made legislative corrections in Section 45, which was later upheld in Vijay Madanlal Choudhary v. Union of India wherein the Supreme Court reinstated the twin conditions and upheld the constitutional validity of the amended provision, thereby reaffirming a more stringent bail regime under the PMLA.

Notwithstanding these statutory constraints, courts have identified/ reiterated independent grounds that may warrant the grant of bail, even where the “twin conditions” or similar rigorous standards apply. The said grounds are procedural safeguards surrounding arrest and unreasonable delay in the progress of a trial. 

Arrest constitutes a grave and coercive measure undertaken by the State, and Indian law—through constitutional provisions, the Code of Criminal Procedure, and the Police Manuals—has evolved a robust framework of procedural safeguards to prevent its arbitrary or unlawful exercise. These safeguards are designed to strike a balance between the State’s interest in maintaining law and order and the individual’s fundamental rights and liberties.

Ground of Arrest not Informed

In the Landmark case Pankaj Bansal V.Union Of India the Hon’ble Supreme Court of India held that a failure to furnish written grounds of arrest at the time of arrest violates Article 22(1) and entitles the accused to be released on bail forthwith. The Pankaj Bansal judgement has decisively shifted the landscape of bail jurisprudence in India by ensuring that arrest is not just lawful but fair and informed. Going forward, any arrest conducted without compliance with this mandate may render the arrest illegal, entitling the accused to immediate bail.

Reasons of Arrest not same as Ground of Arrest

In Prabir Purkayastha vs State (Nct of Delhi) the Hon’ble Supreme Court laid down the difference between “reason for arrest” and “grounds of arrest” and released the accused on bail due to non-communication of the grounds of arrest in writing. The Supreme Court opined that an illegal arrest and remand order cannot be validated merely on the ground that a chargesheet has been filed.

Arrest memo is not akin to supplying Ground of Arrest

The Hon’ble Supreme Court in Ashish Kakkar Vs UT of Chandigarh held that the arrest memo cannot be construed as grounds of arrest and further held that the arrest was in non-compliance with the mandate of Section 50 of CrPC which was introduced to give effect to Article 22(1) of the Constitution of India.

Ground of Arrest informed to Wife but not to the Accused

The Bombay High Court in Sachin Mahipati Nimbalkar vs State of Maharashtra observed that the grounds of arrest were not communicated to the accused. However, it was evident from the arrest panchnama the information was given to his wife apart from which, there were no grounds of arrest mentioned in the arrest surrender form. The Court held this to be a violation of the accused's constitutional and statutory rights.

Prolonged Custody and Trial at Snail Pace

The Hon’ble Supreme Court in Javed Gulam nabi shaikh V. State of Maharashtra & Anr observed that the petitioner had been in custody for a prolonged period without significant progress in the trial. Taking into account the prolonged incarceration and lack of advancement in the trial, the Court granted bail, reiterating that delay in trial proceedings is a valid ground for bail especially when it leads to infringement on constitutional rights.

Right to Speedy Trial

The Hon’ble Supreme Court in Manish Sisodia Vs. Directorate of Enforcement granted bail to the petitioner on account of a long period of incarceration running without the trial being commenced. The Court held that keeping the petitioner behind the bars for an unlimited period of time in the hope of a speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution.

The jurisprudence surrounding bail in India continues to evolve in response to the competing imperatives of individual liberty and the legitimate interests of the State. While special statutes such as the NDPS Act, PMLA, and UAPA have carved out stringent exceptions to the general rule favouring bail, the higher judiciary has vigilantly reaffirmed that such statutory rigour must not override constitutional guarantees.

About the author: Kapil Madan is the Managing Partner of KMA Attorneys. Aastha Thakur is an Associate at the Firm.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.