Bail is the rule, jail is the exception: CJI BR Gavai

In a recent speech, Chief Justice of India BR Gavai emphasized that the legal principle of “bail is the rule, jail is the exception" has been forgotten in recent times. He said that though this norm has been incorporated in judicial decisions for decades, it has not been applied in true spirit in recent years. Delivering the Justice V R Krishna Iyer Memorial Law Lecture in Kochi on Sunday, July 6, the CJI said he tried to re-establish this principle while granting bail in various cases, paving the way for high courts and lower courts to do the same.

Chief Justice of India asserted that “this principle, which is at the core of our Constitution’s guarantee of personal liberty, must be revived and respected by all courts”.

Bail is the rule, jail is the exception: Justice B.R. Gavai

Key points from his statement:

Change in judicial approach

Justice Gavai said many courts have become overly cautious, often refusing bail to avoid criticism, even in cases where bail should be granted.

Constitutional mandate

He reminded the judiciary that Article 21 of the Constitution, which protects the right to life and personal liberty, must guide all bail decisions.

Pre-trial detention &punishment

He stressed that pretrial imprisonment should never become a form of punishment. Keeping someone in custody without trial violates the presumption of innocence.

Recent context:

Justice Gavai has reiterated this principle in recent landmark cases:

He said that I am happy to inform that I had the opportunity to reiterate this legal principle in the cases of Manish Sisodia, Prabir Purkayastha and Kavita vs ED last year, 2024, Justice Gavai said. He said Justice Iyer's contribution in protecting the rights of marginalised communities is enormous. In recent years, the Supreme Court has passed several orders to protect the rights of undertrial prisoners and held that delay in trial and long incarceration is a ground for granting bail even in serious offences under PMLA and UAPA, despite stringent bail conditions under special laws. This opened the way for bail for accused in cases of money laundering and unlawful activities.

Manish Sisodia case (2024)

The Supreme Court granted bail to accused persons, criticising the tendency to keep them in jail simply because the case is high-profile.

PMLA-related decisions

Even in harsh economic offences, he clarified that the rule of bail should not be changed unless legally justified.

Why it matters:

Reaffirmation of this principle promotes fairness and prevents unnecessary imprisonment.

The CJI also recalled Justice Iyer's view that under trial prisoners should not be kept in jail for long periods without trial. In a landmark, the Supreme Court had held that the traditional idea of "bail is the rule, jail is the exception" should apply not only to IPC offences but also to other offences for which special laws like UAPA have been enacted, if the conditions prescribed under that law are fulfilled.

Conclusion:

Chief Justice of India B.R. Gavai said that the Supreme Court, in its various orders, had appealed to the High Courts and lower courts to be liberal in granting bail and asked them not to hesitate to grant relief even in serious offences if a case for bail is made out.

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Bail is the rule, jail is the exception: CJI BR Gavai