Prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. It is part of the settled criminal jurisprudence. Yet, that redline is often observed in its breach. Similarly, the dictum of bail as the rule and jail the exception was first laid down by Justice V R Krishna Iyer in 1977.
A Supreme Court bench while granting bail to former deputy chief minister of Delhi, Manish Sisodia, sought to drill that cardinal principle into the heads of a trial court and the Delhi High Court. Sisodia was arrested in a money laundering case tied to the Delhi excise policy ripoff 17 months ago under the draconian Prevention of Money Laundering Act, 2002, where getting bail is not easy. But the trial in the case is yet to begin and the chance of it being wrapped up quickly is next to zilch. The case for bail had already travelled from the trial court to the high court and the Supreme Court and back twice.
Another iteration of the procedure would only amount to a game of snakes and ladders, the judges reasoned. Since lower courts tend to play safe on matters of bail, the top court needlessly gets flooded with bail petitions.
As of December 31, 2022, the total number of undertrial prisoners in the country waiting for bail stood at 4,34,302, according to data put out by the National Crime Records Bureau. Sisodia, the bench pointed out, was deprived of the right to speedy trial and his fundamental right to liberty under Article 21 of the Constitution.
Sisodia was in the eye of the storm because the controversial new excise policy was crafted under his watch as he had then held the excise portfolio. It allegedly benefitted middlemen who gave his Aam Aadmi Party kickbacks that were plowed into the subsequent elections. His boss and Chief Minister Arvind Kejriwal, too, is under arrest in the same case.
Keeping an accused endlessly in jail without trial is typical of a gulag, not a constitutional democracy. The principle applies to all, including Sisodia and Kejriwal. The political class might want to rip the AAP’s mask of probity in public life by keeping its leaders out of business, but that’s where courts need to step in to make the rule of law uniformly applicable. Else, it will be seen as dereliction of duty.
