A few decades ago, Justice VR Krishna Iyer coined the phrase “bail is the rule and jail is the exception” in the landmark case of State of Rajasthan vs Balchand. This principle underscores the importance of personal liberty and the presumption of innocence in criminal jurisprudence. It acts as a safeguard against arbitrary state detention, ensuring a balanced approach that respects individual rights while upholding public order.

However, in recent years, courts have increasingly shown reluctance in granting bail, especially in cases involving economic offences like fraud and money laundering. These offences are seen as serious threats to the country’s economic stability, often leading courts to deny bail even when trials are long pending.

Liberty over detention

In a significant departure from this trend, the Supreme Court of India, in Prem Prakash vs Union of India, has reaffirmed the principle that “bail is the rule and jail is the exception.” The Apex Court emphasised that bail should be granted swiftly when the twin conditions under Section 45 of the Prevention of Money Laundering Act (PMLA) are met and the trial has not commenced. This approach could lead to substantial changes in the administration of bail.

With this, the SC has signalled that bail applications should be assessed based on justice, not merely the nature of the offence or public sentiment. A more liberal approach to bail would compel agencies like the Enforcement Directorate (ED) to present stronger evidence to justify continued detention. The twin conditions under Section 45 require that there must be reasonable grounds to believe the accused is not guilty and is unlikely to commit an offence while on bail. This would increase the burden on investigative agencies to provide compelling evidence of money laundering and demonstrate that the accused poses a genuine risk if released.

Moreover, a more liberal approach would act as a safeguard against the potential misuse of PMLA provisions. Critics argue that the broad powers vested in the ED have led to unnecessary and prolonged detentions. A quicker grant of bail would prevent agencies from using custodial interrogation to coerce confessions and ensure that pre-trial detention is not used as a form of punishment.

Both the rulings highlight that the stringent provisions of PMLA do not bar the grant of bail, underscoring recent judicial pronouncements that have reined in the expansive powers conferred on the ED. In the controversial ruling of Vijay Madanlal Chaudhary vs Union of India (2022), the SC upheld the legality of the twin conditions under Section 45 and granted the ED wide powers to arrest and investigate. However, recent SC decisions in cases involving P Chidambaram, Pankaj Bansal, Manish Sisodia, K Kavitha and Arvind Kejriwal show a conscious leniency in granting bail, ensuring that the constitutional safeguards under Articles 21 and 22 are not nullified by the stringent conditions of Section 45.

The observations in the Prem Prakash case set a strong precedent, reaffirming the fundamental jurisprudence of bail and reining in the wide powers of the ED to curb potential abuse. The SC’s decision emphasises a balance between individual rights and the objectives of the PMLA, signalling a critical shift toward a nuanced approach to bail jurisprudence under special statutes like the PMLA.

By prioritising liberty and fairness, the Court has reaffirmed the need for a balanced approach that respects individual rights while ensuring justice is served. Consistent implementation of this approach could lead to more judicious use of pre-trial detention, enhanced accountability for investigative agencies and ultimately strengthen the rule of law in India.

(Goswami is a New Delhi-based lawyer. Shreyashi is an advocate and columnist)

Published on September 15, 2024