Bail is the rule, reminds the Supreme Court

9th August 2024 was the eventful day when the Delhi Legislative Assembly Member, Manish Sisodia, was released on bail by the Apex Court in the Delhi Excise Policy Scam 2021-22. Sisodia, who spent 17 months in jail as an undertrial accused, has been booked under provisions of the Prevention of Corruption Act, 1988 (PC Act), the Indian Penal Code, 1860 (IPC) as well as the Prevention of Money Laundering Act, 2002 (PMLA).

The arrest of Sisodia, many other Delhi MLAs lately, and the difficulty in obtaining bail raises significant questions about the liberty of accused persons: whether a right to bail exists amidst prolonged trials, whether special statutes like the PMLA make it more onerous for the accused to build a case and whether the right to speedy trial outweighs the State’s considerations to detain the accused. The Apex Court in Manish Sisodia v. Directorate of Enforcement (2024) examines these in the context of the fundamental right to liberty under Article 21 of the Constitution.

Bail & Liberty

Ordinarily, an accused person does not have the basic right, much less a fundamental right, to seek bail pending a criminal trial. Liberty under Article 21 can be restricted as per due procedure of law. Therefore, an individual may be arrested on a reasonable suspicion by the State and may be questioned in connection with an offence. However, in cases of prolonged incarceration, the right to seek bail might become a fundamental right. This is because since the accused is innocent until proved guilty by a competent Court, he cannot be imprisoned for the indefinite duration of the trial. Bail is the rule and jail is the exception, since the ‘accused’ is not ‘guilty’ yet. Therefore, the conclusion of a trial is not reasonably foreseeable, a denial of bail would violate the accused person’s right to speedy trial under Article 21. Here, the only factors that are material for the Court are if the accused is at flight-risk, there is a possibility of him threatening witnesses, sabotaging investigation or that he could be a danger to the society.

For Sisodia, the fact that 493 witnesses were required to be examined at trial which had not commenced meant that the possibility of a short trial was remote. He could therefore not be jailed for an unlimited period hoping for a speedy trial. As also held in Prabir Purkayastha v NCT of Delhi, liberty was the most sacrosanct fundamental right under Articles 20, 21 & 22 of the Constitution, which the Apex Court considered valuable to protect.

Bail under PMLA

If bail is the rule, why are courts slow in granting bail in ED arrests? There is something peculiar about the PMLA. Unlike offences under the IPC, Section 45 of the PMLA requires that in order for grant of bail, first, the Public Prosecutor must be given a chance to oppose the bail petition, second, where the Prosecutor opposes, there must be reasonable grounds to believe the accused has not committed the offence and is not likely to commit an offence while on bail. These twin conditions are extremely onerous for an accused who must reasonably satisfy the judge that he has not committed the offence at the stage of bail itself (& not trial). The burden completely shifts from the State to the accused. Besides, the requirement of proving that the accused is unlikely to commit an offence while on bail is nearly impossible.

Since these twin conditions of bail are still the law of the land, as upheld by the Apex Court in Vijay Madanlal Choudhary (2021), currently under review, these are applied each time a case is registered under the PMLA. These conditions are also part of other special statutes such as the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS) & Unlawful Activities Prevention Act, 1967 (UAPA) and make it difficult to seek bail under these statutes, much like PMLA.

Reconciling the PMLA with speedy trial, the decision in Sisodia becomes more significant as the right to speedy trial is read into Section 45 of PMLA. The Court reasons that while the twin conditions of bail ought to be followed, they are to be overridden by considerations of delayed trial and prolonged incarceration under Article 21. In such cases, Section 45 would be a guided power to be exercised reasonably and more generously, in order to preserve the fundamental right of the accused, not yet a convicted offender.

Duty of Courts below

Another crucial aspect the Apex Court reiterates, is the duty of the High Court & Trial Court to remember that bail is the rule and jail is the exception. Courts often don’t follow this, and bail rejections are appealed in the High Court and/ or Supreme Court (as the case may be), adding to the pendency of cases. In fact, this is visible from the recent causelists of the Supreme Court, listing anywhere between 10-20 bail matters each day in each court (usually 16 courts sit every day). In Sisodia’s case, the matter had already passed through the Sessions Court, Delhi High Court and Supreme Court once, and this was a second plea directly before the Supreme Court. This second time, the Supreme Court was convinced to entertain it directly to avoid wastage of judicial time and to timely preserve liberty.

Besides, the purpose of bail was really to ensure the accused attends trial. Since Sisodia had deep roots in the Indian society, the possibility of him feeling the country to evade trial did not exist. The possibility of tampering with evidence was also negated since the documents were already seized by ED. Therefore, a first amongst many accused in the Delhi Excise Policy, Sisodia was granted bail. Though Justices BR Gavai & KV Vishwanathan reminded the courts of a pro-liberty stance to bail, albeit in PMLA cases, only time will tell if this makes its way to the courts below.