Punishment Before Proof: How Indian Courts are Turning Bail into Premature Punishment

An equitable criminal justice system is the bedrock of a democratic society governed by the rule of law.¹ Ensuring it is the primary obligation of the State. The litmus test for assessing the fairness of any criminal justice system is its ability to balance two competing interests i.e. liberty of an accused on one hand, and the security of the State on the other. None of these can be allowed to completely overshadow the other and therefore, the institution of bail becomes paramount to maintain this balance. It has been reiterated time and again that except in accordance with the due process of law, a prisoner cannot be deprived of his guarantees under Articles 14², 19³ and 21⁴.⁵ Yet, the promise of “bail as rule, jail as exception” rings hollow when courts transform the conditions of release into instruments of premature punishment. A series of disturbing instances has emerged across the Indian judiciary where courts on account of imposing bail conditions have effectively confused the purpose of pre-trial detention with post-conviction sentencing. This is in direct violation to the principle of presumption of innocence. The purpose of this article is to examine this disturbing trend by examining the fundamental principles of bail, analysing these extraneous conditions through case laws and highlight the factors which led to this systemic flaw and finally, how this can be remedied.

The constitutional compass of bail: Presumption of innocence and the “triple test”

Internationally, there is no dearth of international conventions which have recognised the cardinal principle of criminal law that every person is presumed to be innocent until pronounced guilty.⁶ In the Indian context, the concept of bail is not a matter of judicial charity; it is a constitutional imperative flowing directly from Article 21’s guarantee of the right to life and personal liberty which operates at the intersection of personal liberty and societal interest.⁷ It is the procedural safeguard that breathes life into the “presumption of innocence”, often described as the “golden thread” that runs through the entire tapestry of criminal jurisprudence.⁸ The justification of this presumption in favour of the accused is the great power imbalance between the two parties. On one hand, there is the almighty State which has all the resources at its disposal which it may use to collect evidences and secure conviction at the trial and on the other hand, there is an accused who most of the times lack the resources to even seek legal counsel and put up a proper defence.⁹ This presumption of innocence is not limited to being a mere rule of evidence to be invoked at the trial stage but is a fundamental principle that must inform the mood/attitude of all the State officials requiring them to treat an individual as an innocent person until and unless he has been pronounced guilty by the competent court.¹⁰ The European Court of Human Rights (ECtHR) and the Supreme Court of USA are also of the similar view.¹¹ Granting bail is, therefore, an act which reinforces this presumption acting as a bulwark against arbitrary arrest and prolonged detentions.¹² The grave consequences of denial of bail to a person who otherwise deserved it has already been noted by the Supreme Court.¹³

Given this constitutional mandate, the purpose of bail is narrow and specific i.e. to ensure the presence of the accused to face his/her trial and to prevent them from obstructing justice. To this end, the “triple test” developed by the Indian courts becomes relevant as the primary framework for bail adjudication. Under this test, the Court is only concerned with assessing three specific risks: the flight risk (risk of the accused absconding), the risk of tampering with evidence and influencing the witnesses qua the accused/applicant. Therefore, any condition imposed for the grant of bail must have a direct and rational nexus to mitigating one of these risks. This test should serve as the guiding start for any Judge adjudicating a bail application.

Even the Supreme Court’s own jurisprudence has not been consistent on this and has at times muddied these clear waters. While there has been repeated emphasis on the centrality of the “triple test” discussed above, the Supreme Court has also listed various other factors to be considered while deciding the question of bail,¹⁴ ranging from seriousness of the offence to prima facie guilt of the accused.¹⁵ This jurisprudential ambiguity has resulted in the independent considerations of these factors without linking them with the “triple test” which in turn has resulted in inconsistency and subjectivity in bail adjudication by the trial courts.¹⁶ Therefore, the problem is not merely that the trial courts are misapplying the law, but that the law, as articulated from the top is susceptible to misinterpretation.

The anatomy of punitive bail: A judicial overreach in four acts

The nature and purpose of a pre-trial detention is clearly different from that of a post-conviction sentence. The former is substantially a preventive measure invoked to protect against the accused who is either absconding or interfering in the fair investigation of the case, either by tampering the evidence or threatening witnesses and is governed by the rule of presumption of innocence whereas, the latter is essentially a punitive detention imposed once the guilt of a person has been established beyond reasonable doubt. Guilt is irrelevant at the stage of deciding bail. And, therefore, detention prior to conviction ought to be imposed only when the harm posed by releasing the person on bail outweighs the liberty of the accused.¹⁷ This concern is not merely theoretical but a lived reality for countless accused, manifested in a wide array of extraneous and onerous conditions imposed by courts across the country. A study of bail orders from the Delhi Sessions Court shows that the courts have conflated these two kinds of detentions.¹⁸ This overreach can be further divided into four distinct, yet interconnected, acts of judicial misadventure.

Act one: The bail court as a civil adjudicator

The Supreme Court has repeatedly deplored the practice of criminalisation of civil disputes,¹⁹ even going to the extent of imposing costs of Rs 50,000 on the State of Uttar Pradesh for its continuing practice of converting civil matters into subject-matters of criminal proceedings.²⁰ However, an opposite problem has creeped in bail adjudication where the criminal courts assume the jurisdiction of a civil court. In these cases, the liberty of the accused is used as leverage to enforce a civil remedy or settle a monetary dispute. This becomes evident upon examination of various judgments. In Mahesh Chandra v. State of U.P.²¹, where paying a monthly sum to the victim’s daughter-in-law was one of the bail conditions, the Supreme Court was of the categorical view that while adjudicating upon a bail application, the respective Court is not empowered to decide the civil disputes between the parties. In Dinbandhu v. State of Bihar²² it was laid down that a Court cannot rule upon the genuineness and validity of a document at the stage of granting bail. The Court cannot compel a person to deposit the entire disputed amount in court for obtaining bail.²³ Neither, the courts can impose a condition requiring a husband to pay maintenance to his wife as a condition precedent for bail.²⁴ Similarly, the Supreme Court has also set aside different bail conditions like requiring an accused to compensate the victim,²⁵ a panchayat teacher to return her salary,²⁶ or a husband to meet all the physical and financial needs of his wife.²⁷

Such orders are a flagrant violation of procedural due process. A bail hearing is a summary proceeding, ill-equipped to adjudicate complex civil disputes that requires presentation of detailed evidence, examination of witnesses and thorough legal arguments. By conflating the criminal and civil processes, the court not only acts ultra vires but also denies the accused a fair hearing on the civil matter, effectively coercing a settlement under the threat of prolonged incarceration.

Act two: Community service as a pre-trial sentence

As discussed above, one of the fundamentals of criminal jurisprudence is the presumption of innocence. Yet, courts have directed accused persons to perform a range of tasks that bear no nexus to ensuring their presence at trial. There have been several cases where the courts have imposed such conditions of bail which might have formed part of the sentence and that too after deciding the case on merits at trial. This results in the phenomenon known as “guilty before trial”. In 2020, during the COVID-19 Pandemic the Patna High Court directed a person to render voluntary services for a period of three months for helping in combating the outbreak.²⁸ In another instance, a Bihar Additional Sessions Court directed a washerman accused to wash the clothes of all the women in the village for six months.²⁹ In Soleman Sk v. State of W.B.³⁰, the offender (juvenile at the time of committing the offence) was ordered to plant 100 trees within a year.

While these conditions may appear socially beneficial, they are legally indefensible at the pre-trial stage. Moreover, with the formal recognition of community service as one of the kinds of punishment by Section 4(f)³¹ of the Nyaya Sanhita, 2023³². Furthermore, Section 23³³ of the Nagarik Suraksha Sanhita, 2023³⁴ defines “community service” as the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration. The newly enacted criminal laws, therefore, provides the required legislative clarification that a bail cannot be granted subject to these punitive conditions without proper and complete adjudication. Thus, the argument is not that these conditions merely feel punitive; it is that they are, by legislative definition, a punishment that can only be imposed after a full trial and a finding of guilt. Any such condition imposed at the bail stage is therefore patently illegal and ultra vires.

Act three: The court as moral guardian and social reformer

There have also been instances where the courts have assumed the role of a moral guardian or social reformer, imposing bail conditions for the moral re-engineering of the accused but devoid of any nexus to ensuring the presence of the accused in Court and the “triple test” discussed above. A stark example of this is the infamous case of XYZ v. State of M.P.³⁵, in which the Supreme Court set aside the controversial “rakhi for bail” condition requiring the accused to visit the complainant’s home with a box of sweets, tie a Rakhi, promise to protect her, and give her Rs 11,000 as a customary gift. The Supreme Court noted that these kinds of conditions trivialise the offence and dilutes the offence of sexual harassment by imposing a patriarchal and regressive worldview.³⁶ The problem with these kinds of conditions is that they tend to go beyond the scope of legal adjudication, into the subjective domain of social and moral policing. A Judge cannot impose any bail condition based upon his own understanding of what is morally right and wrong. Such orders infringe upon the personal dignity and autonomy of both the accused and the victim, and they undermine public confidence in the judiciary as an impartial arbiter of law.

Act four: The erosion of constitutional rights

The last kind of extra-judicial bail conditions are those which strike at the very heart of fundamental rights. For instance, the Delhi High Court had granted bail to a foreign accused in a NDPS case subject to the condition that requiring him to drop a pin on Google Maps for the investigating officer to continuously access and monitor his location. This condition was later overturned by the Supreme Court in Frank Vitus v. Narcotics Control Bureau³⁷ on the ground that this condition violates the right to privacy of the accused by allowing the police to constantly track the movement of the accused and peep into the private life of the accused. In the more recent India’s Got Latent controversy, the Supreme Court while granting interim protection from arrest (remedy similar to anticipatory bail in effect) to Ranveer Allahbadia barred him from airing any other show till further orders.³⁸ In another case, involving alleged controversial social media posts regarding Operation Sindoor, the Supreme Court granted interim bail to Ali Khan Mahmudabad, a professor in Ashoka University on the condition that he will not write any posts or articles in relation to the social media posts which are subject-matter of the case or from expressing any opinion in relation to the terrorist attack on Indian soil or the counter response given by India.³⁹ These gag orders directly attacks upon the accused’s constitutional right of freedom of speech and expression. They create an unconscionable choice for the accused: surrender a core constitutional protection or remain in jail. The law should never compel such a choice. Liberty cannot be conditioned upon the waiver of a fundamental right.

A pathway to reform: Reclaiming the sanctity of bail

What emerges from these four acts is the absence of a uniform, legally sound pattern for the imposition of bail conditions. The factors considered by the courts vary widely, and the punitive bail conditions often stray beyond the court’s rightful jurisdiction. This inconsistency not only frustrates the true object of bail but also undermines the presumption of innocence, leaving the accused subjected to conditions that, in effect, punish them before any trial verdict is reached. What is required is a multi-faceted approach involving legislative action, judicial discipline. The goal must be to restore clarity and consistency to the process of bail adjudication.

The first and foremost step will be to codify the nexus principle. The Parliament should consider amending the relevant provisions of the Nagarik Suraksha Sanhita, 2023 to statutorily mandate that the courts can only impose such a bail condition which has a direct, rational and demonstrable connection to the triple test discussed above. This will convert the nexus principle from a matter of judicial interpretation to an explicit legislative command. Secondly, the Supreme Court must assume the leadership role and lay down a set of comprehensive and binding guidelines which at least, reaffirm the primacy of the triple test, establish a clear hierarchy of factors which the courts are to consider while granting bail and to settle that their relevance is only limited to the extent they affect the triple test and explicitly prohibit extraneous conditions like community punishment, moral policing and those which violates fundamental rights.

The imposition of punitive bail conditions is a kind of judicial overreach that punishes the undertrial, negates the presumption of innocence, and transforms the instrument of bail from a guarantor of liberty into a form of punishment. It is imperative for the Supreme Court, High Courts, legislature to engage in a collective effort to restore the institution of bail to its rightful place as a bulwark of liberty.