[Update] — The New Supreme Court Guidelines on Bail, back to the Drawing Board

In October 2021, the Supreme Court issued Guidelines to streamline processing of bails in cases where an accused is not arrested during the investigation. This Blog was circumspect about the endeavour itself as well as the substantive guidelines issued. The broad point was simple, that while the intent of the Court might've been to send a message that in cases where persons were not arrested during investigation the mere filing of a chargesheet ought not to act as a trigger to take away one's liberty, the manner in which the guidelines were framed still gave far too much leeway for interference with liberty. 

Not to mention the specific issues in how the guidelines created a category of "Economic Offences" without defining them, as well as referred to Section 45 of the Prevention of Money Laundering Act 2002  ("PMLA") without any riders, at a time when the legality of this provisions is a serious bone of contention between the concerned agency (Directorate of Enforcement) and accused persons. For those less conversant with the issue, essentially, the bail conditions in the said clause were struck down as unconstitutional, were then sought to be reintroduced via amendments in 2018, only for many High Courts to rule that the amendment did not resurrect the clause. The issue is currently pending before the Supreme Court, but the agency still tries its luck and contends that the 2018 amendment has resurrected the bail conditions. Unsurprisingly, the agency in some cases sought to use the reference to Section 45 in the bail guidelines to suggest that the Supreme Court had given its imprimatur to the validity of the provision. Indeed, in more than one such case, trial courts saw the guidelines as having confirmed that Section 45 was back in action. 

Since the issues regarding economic offences and money laundering ensnared persons with deep pockets, it meant they could afford filing applications (and pursuing them with quality counsel) before the Supreme Court requesting it to reconsider the specifics of the guidelines. On 16.12.2021 the Supreme Court took up the applications and agreed with these requests to some extent. The nature of the hearing (as per reports) as well as the contents of the order itself make it clear that the Court's intent behind the Guidelines had not been successfully transmitted across to the police, prosecutors, and courts below. This necessitated the court to expressly reiterate, once more, that "Our intent was to ease the process of bail and not to restrict it." And conclude the order by unequivocally stating that "if during the course of investigation, there has been no cause to arrest the accused, merely because a charge sheet is filed, would not be an ipso facto cause to arrest the petitioner." 

This was not all. The Court expressly clarified that the reference to Section 45 of the PMLA in the October guidelines was "inadvertent" and that the legality of the amended clause was very much an open issue. In respect of "Economic Offences", the Court noted that this ought not to lead to police, prosecutors, and courts giving a "different meaning" to the guidelines by making bail harsher for non-cognizable offences. 

The matter remains pending with the Court imploring the counsels to sit together and work out the issue, which means that it remains intent on going ahead with issuing some form of guidelines. Notwithstanding the reservations this Blog might have with the entire idea of guidelines, any measure which helps to even in some measure reduce the pernicious tendency of unnecessary arrests should deserve some support. However, arriving at a balanced outlook which caters to the many competing interests at play will be a hard ask. As the Court itself reportedly noted during the hearing, that at some level no matter what order or guidelines may be issued, certain mindsets are ingrained in the relevant actors which cannot be changed that easily.

Only time will tell how this process pans out. For now, the clarifications to the bail guidelines ought to be welcomed and should hopefully take away the worst unintended consequences that had resulted from the exercise. 

[Disclaimer: the author was part of the legal team in one of the applications]