New Delhi: The oft-quoted legal principle that “bail is rule and jail is exception” was first laid down by the Supreme Court in its landmark verdict almost 47 years ago and was cited once again while granting bail to senior AAP leader Manish Sisodia on Friday.
The concept came into being in a 1977 verdict penned by Justice V R Krishna Iyer in the ‘State of Rajasthan versus Balchand alias Baliya’ case, and has been alluded to by courts in a large number of cases ever since.
The number of under trial prisoners in the country lodged in jails for want of bail is huge. According to the National Crime Records Bureau (NCRB) data, as on December 31, 2022, the total number of under trial prisoners in the country stood at 4,34,302.
This humongous figure also includes some well-known people like Delhi Chief Minister Arvind Kejriwal, former Delhi minister Satyendar Jain, BRS leader K Kavitha, former Tamil Nadu minister V Senthil Balaji, TMC leader Anubrata Mondal and Unitech promoters Sanjay and Ajay Chandra.
Former finance minister P Chidambaram, Jharkhand Chief Minister Hemant Soren, former Bihar Chief Minister Lalu Yadav, ex-Union minister A Raja, DMK leader Kanimozhi, AAP MP Sanjay Singh, deputy chief minister of Karnataka D K Shivakumar, a host of activists including Gautam Navlakha–the list is endless.
The principle of “bail is rule and jail is exception” was invoked in many cases involving these personalities while granting them bail.
The Supreme Court, in its November 2011 verdict, had granted bail to five accused including Sanjay Chandra in the 2G spectrum allocation case while observing that the top court, time and again, has stated that bail is the rule and committal to jail an exception.
On certain occasions, courts have not invoked the principle, saying its applicability may vary from case to case.
In its November 2020 order extending the interim bail of journalist Arnab Goswami and two others, the apex court had referred to various judgements to highlight the importance of personal liberty and the oft-repeated principle.
In its December 2019 judgement granting bail to P Chidambaram in the INX Media money laundering case, the top court had said though the economic offences have been said to be of grave nature, “the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial”.
Chief Justice of India D Y Chandrachud, in his inaugural address at the All India District Judges Conference at Dhordo in Gujarat’s Kutch district in March this year, expressed concern that the longstanding principle of ‘bail is the rule, jail is the exception’ is losing ground with district courts hesitating to deal with matters involving personal liberty.
In its Friday’s verdict granting bail to Sisodia, the apex court said the principle is, at times, followed in breach.
“It is high time that the trial courts and the high courts should recognise the principle that ‘bail is the rule and jail is the exception’,” it underlined.
Chidambaram was arrested in August 2019 and was granted bail in October of the same year.
Sisodia was arrested by the Central Bureau of Investigation (CBI) on February 26 last year, while the Enforcement Directorate (ED) arrested him on March 9, 2023. He got bail on Friday after 17 months in custody.
