A Prosecuting Agency Cannot Oppose Bail While Delaying Trial

Newsreel Asia Insight #273
July 6, 2024

In a judgment regarding a bail appeal filed by a man charged under the Unlawful Activities Prevention Act (UAPA), the Supreme Court of India has pointed out that bail should not be used as a punishment and clearly articulated the constitutional right to a speedy trial. The Court has reasserted a foundational principle of criminal jurisprudence: the presumption of innocence, as enshrined in the Constitution of India.

The judgment delivered by Justices J.B. Pardiwala and Ujjal Bhuyan is critical of how lower courts have deviated from the principle that “bail is not to be withheld as a punishment,” as reported by LiveLaw. In other words, the courts must ensure that the process of justice does not itself become punitive.

The Supreme Court stressed that the purpose of bail is to ensure the appearance of the accused at trial, not to serve as a pre-emptive punishment.

The primary intention of bail is to balance the accused’s fundamental right to liberty with the judicial system’s need to ensure they remain available for trial. Bail is essentially a legal tool used to secure the accused’s attendance at court proceedings while allowing them to remain free until proven guilty, thus respecting their constitutional rights.

The decision to grant bail to the appellant in this case, who had been incarcerated for four years without the commencement of a trial, reveals a significant lapse in the judicial process.

The judgment is particularly critical of the prosecution and the trial court for not framing charges even after four years – that’s nearly 1,500 days – and for planning to examine an extensive list of 80 witnesses. The Supreme Court stated that if the state and prosecuting agencies do not make efforts to uphold the accused's fundamental right to a speedy trial, they are not entitled to oppose the accused’s bail.

The judgment asserts that Article 21 of the Constitution, which guarantees the protection of life and personal liberty, applies irrespective of the gravity of the alleged crime. This is a crucial point, as it places the fundamental rights of the individual above the procedural severities that might be dictated by the seriousness of the charges.

The judgment sends a strong message to all levels of the judiciary that deviations from constitutional guarantees and judicial principles will be critically viewed by the higher courts. It also sets a precedent for future bail considerations, particularly in cases involving serious allegations under stringent laws like the UAPA, where the courts are reminded that statutory severity, or the strictness or harshness of laws as prescribed by statutes, cannot override constitutional rights.

There is a concerning possibility that governments might use legal proceedings as a form of punishment before an accused is proven guilty in court, a practice known as “pre-trial punishment.” This can manifest through excessively prolonged detentions, repeated denials of bail or the imposition of overly strict conditions that curtail personal freedoms—all occurring within the judicial process but before any formal conviction. Such tactics can effectively punish individuals by restricting their liberty, disrupting their personal lives and stigmatising them in the community, all without the due process of a conviction.