Despite the Supreme Court holding that the right to default bail is a fundamental right, instances of interpretative chicanery have created pockets of exceptions to this rule.
Author
Raunaq Jaiswal, Assistant Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
Summary
When it comes to the law of bail in India, there are two sides of the coin. On one side, we have the principle that ‘bail is a rule, and jail is an exception.’ The other side reveals the harsh reality that ‘procedure is the punishment.’
However, when the metaphorical coin is tossed, it rarely falls with a 50% probability on either side. For instance, while the Supreme Court of India has consistently affirmed that ‘bail is a rule and jail is an exception, this principle has often found pockets of exception in application, meaning that some individuals have been deprived of their liberty without a formal indictment of their guilt.
Similarly, despite the Supreme Court holding that the right to default bail is a fundamental right, instances of interpretative chicanery have created pockets of exceptions to this rule.
If a Supreme Court directive can be circumvented through procedural or administrative manipulation, what does that imply about a ‘right’ being a right at all? Does this not make it a case where procedure becomes punishment? The ruling in Pragyna Thakur and its subsequent application, especially by lower courts, highlight this troubling phenomenon. The Supreme Court, in Pragyna Thakur, laid two propositions: first, on the issue of computation of the 60/90 day period, and second, on the meaning of the phrase ‘if not availed off’. While the first proposition has been affirmed, the second has been held to be per incuriam, i.e., discredited by a larger bench of the Supreme Court in M Ravindran. It was held to be per incuriam because it arguably constricted liberty beyond the procedure established by law.
However, in at least five reported cases that we have found in legal databases after the Ravindran ruling — which may be just the tip of the iceberg — courts have continued to rely on the discredited part of the ruling in Pragyna Thakur v. State of State of Maharashtra (2011).
Published in: Deccan Herald
To read the full article, please click here.
