In October 2023, the Supreme Court in Pankaj Bansal v. Union of India emphasised that, under the PMLA, the grounds for arrest must be communicated to the arrested person in writing. The Court held that merely reading the charges orally does not satisfy the procedural safeguards of the statute or the Constitutional protections guaranteed under Articles 21 and 22. The Court declared the arrest unsustainable and granted bail to the accused. However, a few months later, in December 2023, a coordinate bench in Ram Kishor Arora v. Directorate of Enforcement diluted this condition, ruling that while the arresting officer need not immediately provide written reasons for the arrest, they must do so within 24 hours.

In February 2024, the Supreme Court, while rejecting bail in Gurwinder Singh v. State of Punjab, observed that under the UAPA, bail is the exception and jail is the rule. The Court categorically stated that mere delays in the trial process do not justify granting bail in serious offences.

However, recent judgments from the Supreme Court seem to suggest a shift in this stance. On May 15, 2024, the Court granted bail to NewsClick founder Prabir Purkayastha in a UAPA case, relying on the principle laid out in Pankaj Bansal. The Court reiterated that fundamental protections under Articles 21 and 22 cannot be compromised.

This pro-bail trend continued in July 2024, when the Supreme Court granted bail in Javed Gulam Nabi Shaikh v. State of Maharashtra. The Court stated, “If the State or any prosecuting agency, including the court concerned, cannot protect the fundamental right of an accused to a speedy trial as enshrined under Article 21 of the Constitution, then they should not oppose bail simply on the grounds of the seriousness of the crime. Article 21 applies regardless of the nature of the offence.”

A few weeks later, in Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, the Supreme Court clarified that the Gurwinder Singh judgment must be viewed in the context of the specific case, where 22 witnesses had already testified, and there was substantial evidence supporting the prosecution. Relying on the three-judge bench decision in K.A. Najeeb, the Court stressed that it would be contrary to constitutional principles to categorically state that bail cannot be granted under any particular statute.

On August 8, 2024, the Supreme Court granted bail to Aam Aadmi Party leader Manish Sisodia in the liquor policy case. Reaffirming the principles in Gudikanti Narasimhulu, the Court noted, “It appears that trial courts and High Courts attempt to play it safe in matters of bail. The principle that bail is the rule and refusal of the exception is, at times, breached. It is high time that trial courts and High Courts recognise this principle.”

Continuing the trend, the Supreme Court in Jalaluddin Khan v. Union of India, while granting bail in a UAPA case, observed, “Even under statutes with stringent conditions for bail, the rule still holds that bail can be granted if statutory conditions are met. Once a case for bail is made, the Court cannot deny it.”

On September 2, 2024, while granting bail to Vijay Nair, an accused in the liquor policy case, the Supreme Court reiterated that pre-trial incarceration should not become a form of punishment.

These judgments signal a trend towards reaffirming the principle of "bail, not jail," even in cases involving special statutes. However, this shift may take time to reach lower courts, which often play it safe in cases under special laws, passing the responsibility to higher courts. Many cases under special statutes involve serious allegations, overshadowing the actual evidence. As the Supreme Court noted in Jalaluddin Khan, the focus often shifts to the illegal activity rather than the specific case against the accused. Prosecutors frequently emphasize the gravity of the offence as a reason to oppose bail, relying more on conjecture than evidence.

According to the latest Statistics of Prisons in India, undertrials account for more than 75% of prisoners in Indian jails, a clear indication that “bail, not jail” is far from reality. Prolonged pre-trial incarcerations often end in acquittal, especially in cases under the UAPA. For instance, professor G.N. Saibaba was acquitted after 10 years of imprisonment, during which his health deteriorated significantly. A study by the People’s Union of Civil Liberties found that 97% of those arrested under the UAPA between 2015 and 2020 were eventually acquitted. Such cases expose the fractured nature of the criminal justice system, where acquittal after long pre-trial detention hardly constitutes justice.

Ultimately, the courts must let evidence on record dictate the outcome, rather than preconceived notions about the crime or statute.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.