Jail is not the Rule - Contesting Restrictive Bail Regimes (new series)

Growing up, the soundtrack of Amar Prem was very popular in my house. I never understood it much, but as I grew older, I came to love it too. Why such a random start? Because it is a few lines from one of its songs, called Chingari Koi Bhadke, that I have been stuck on for the past few days. The poetry of its lyric (crooned by Kishore Kumar) is laced with intriguing posers, and one of them asks us that if the boatman is the one responsible for keeping us afloat at sea in choppy waters, what will happen if the boatman decides to sink the ship? 

Let me use a different frame of reference to convey the issue which the song poses. If our constitutional courts are the ones responsible for keeping the flame of fundamental rights and personal liberties ablaze even as the other conjoint branches of the Indian State are determined to snuff it out, what will happen if constitutional courts decide to thumb out the flame as well? This is exactly the dilemma put to us when the courts begin to uncritically state that for some situations "jail is the rule" because the legislature appears to have said so, and proceed to deny bail and condemn a person to incarceration pending an adjudication of his guilt. 

This was the position recently endorsed in a decision of the Supreme Court in context of Section 43D of the Unlawful Activities Prevention Act 1967 ['UAPA']. Even though this opinion may only be by Two Justices and arguably incorrect for failing to even refer to binding precedent, its existence has emerged as a lightning rod to galvanise anti-liberty views on how judicial discretion should be exercised. It did not take long for the Madras High Court to repeat the mantra when dealing with another restrictive bail clause, that under Section 45 of the Prevention of Money Laundering Act 2002 ['PMLA']. 

At this stage you might think - well, so what? Judgments adopting a highly restrictive view on matters of liberty are as old as the Constitution itself, they coexist with judgments adopting a more critical view of the exercise of state power to ensure that the deprivation of liberty is not unjust, and good advocacy lies in the ability to differentiate the bad ones and use the good ones. The "jail is the rule" mantra is no exception to this time-tested logic. 

To which, I would urge you to reconsider this accepted wisdom and ask whether a matter such as personal liberty pending trial is one which should be subject to vagaries of 'good' advocacy or be considered a matter that is too fundamental to be trifled with in such a manner. If you agree with the latter thought, then I would also ask you to consider that over the past 74 years, restrictive bail clauses are now found across nearly twenty statutes across the central and state laws, and have become a key prong in lawfare tactics adopted in India. 

Contending with, and contesting, the restrictive bail clauses splattered across the Indian legal landscape is thus slowly emerging as the pre-eminent problem for both lawyers and scholars who are vested in the idea that the Constitution is a document designed to protect personal liberty and only permit its deprivation in a manner consistent with proportionality, fairness, and reasonableness. This Blog has dealt with such clauses in the past, both in terms of specific statutes and a more generic frame of reference, and offers an archive to help understand the issues. 

Over the next few weeks, we will develop on the more generic approach to complement the older posts which are now almost nine years old. The aim is to adopt a similar flow - start with the history, to then contend that the clauses are unconstitutional, and knowing just how unlikely such a claim is to succeed, also suggest ways in which courts can (and must) insist upon a fairer application of the restrictive bail clauses.