Bail Dilemma: Judicial Suspension of Article 21

Abstract
Curtailing a person's liberty on the grounds of lack of human resources and order passed by the
executive declaring Lockdown, which holds no direct bearing on the case, is not justified and is
nothing more than misusing the power of the court to do injustice. The article highlights a similar
situation in which two high courts denied hearing bail applications on the pretext of following
lockdown guidelines and allowing only those bail applications which passed as an “extremely
urgent matter” and placing the lockdown regulation above individual liberty and freedom, thus
violating A. 21 of our constitution. In this article, the author deplores the reasoning given by both
judges of the high court in rejecting bail application, and how this instance showcases the failure
of our Judiciary to uphold the paramount right of liberty and freedom of individuals, in this time
of the pandemic.

Keywords: Liberty, Freedom, Article 21, Bail, Judicial Suspension, E- Judiciary, Pandemic.

'Emergencies' have always been the pretext on which the safeguards of individual liberty have
been eroded.
-Friedrich August von Hayek

Amidst the national lockdown imposed due to covid 19, on the 3rd of April, a Supreme Court
bench of L. Nageswara Rao and Deepak Gupta JJ, passed an order, granting an interim stay on
order passed by the single judge bench of Rajasthan High Court arising (out of S.B.Criminal
Miscellaneous Second Bail Application No.17767 of 2019). The case was an appeal against an
order passed by a single judge of Rajasthan high court which dismissed the bail application of
the undertrial prisoner citing, non-availability of administrative staff and hearing of only those
cases which pass the test of 'extremely urgent matter', during lockdown period, as grounds for
dismissal. The irony was that the high court appealed against the order through its registry to the
Supreme Court, which later gave a stay on order.
Another case arose on the very same day, in the Bombay High Court, where another single judge
passed an order dismissing the bail application citing the same reasons and holding, the order
passed by Rajasthan high court as an authority for its actions. The reasons laid down by the judge
in succinct was-

"...Because of Lockdown declared by the State, as mentioned in the preceding

paragraph, all Offices, including Offices of the Court, are virtually closed. By
deputation of bare minimum staff, extremely urgent business is being transacted.
1. Processing a bail order and consequent release of an accused/convict, as such,
virtually amounts breaching the order of complete Lockdown. 2. Putting several
employees and officers to work may put them to the risk of contracting COVID-
19."

The reasoning given by both judges of High Courts in the order can be termed absurd, and in
violation of constitutional as well as humanitarian principle. Unless an “extremely urgent
situation” for entertaining regular bail application is pointed out, the mere fact that the accused is
undergoing either pretrial or post-trial detention does not make a difference in deciding whether
to hear the bail plea. Denial of bail without any just cause amounts to a Judicial suspension of
Article 21 of the constitution. The same is being done for the class of undertrial prisoners citing
the order of lockdown passed by the executive, making the decision of the two high courts
unreasonable and arbitrary.

This situation reminds of episodes that happened during the emergency period, which was later
approved by the utterly disgraceful judgment of ADM Jabalpur delivered by the Apex court in
the year 1976. After what was done by the 44th amendment to the constitution, taking away a
person's liberty by the colorable order of the executive even in a state of emergency is discarded
as it makes a mockery of the constitution and is unconstitutional. The current situation is not the
one where an emergency has been declared, so, paying adherence to guidelines of the executive
cannot be a ground for not hearing bail applications and restricting one's liberty.
Further, Supreme Court in its judgement concerning Section 167(2), Cr.P.C (read this) said that
the right of default bail must be granted providing no extension for the period required to have
default bail, and declared that right to bail is indefeasible right, held by this court in the case of S.
Kasi v. State (2020), which in turn supports the individual liberty and freedom. The orders of
both, the Rajasthan and Bombay High Court, and the judgement of SC, regarding right of default
bail, stands in contrast with each other.

The Phrase 'extremely urgent matter'.

The Judiciary over time has emphasized the importance of a person's life and liberty, which in
turn led to a broad interpretation of Article 21 of our constitution. The guidelines delivered in the
case of D.K. Basu vs. State Of West Bengal delivered by Supreme court in the year 1996,
effectively talks about the importance of liberty of undertrial prisoners, whose guilt has not been
proven yet and who is subject to the hard life of judicial custody which completely negates the
fundamental principle which our maker envisaged under article 21. Asking a person to prove his
freedom as an 'urgent matter' which is otherwise guaranteed to him as fundamental right and
restricting it in view of executive order is nothing more than the breach of constitutional
principles, by the one protecting it.
The court in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, (1997), held that
“… Personal liberty, deprived when bail is refused, is too precious a value of our constitutional
system recognized under A. 21. that the curial power to negate it is a great trust exercisable, not
casually but judicially…” Denial of bail without any justified reasons is breach of fundamental
right of paramount importance. Bail is a general rule and denial is an exception which should be
done in consonance with the constitution, is been laid down as law by the Apex court in the case
of State of Rajasthan v. Balchand alias Baliya in 1978. Creating a new category as 'extremely
urgent matter' within bail applications is in itself a constitutional wrong incorporated by the
higher Judiciary and is in complete derogation of the primary objective of the constitution, which
is to protect individual liberty.

The Need For E- Judiciary

This instance of rejecting bail application due to lack of administrative staff availability again
questions the effectiveness of the Indian Judiciary. Judiciary cannot deny just and fair treatment
to persons due to its incompetence. The lack of administrative resources arose because our
Judiciary is not well equipped to deal with these situations, so making this a reason to violate
someone's rights is absurd. This situation again gives a heads up to our Indian judiciary system to
finally accept and adapt to the E- Judiciary model. Our Judiciary is hesitant to adapt to this
drastic change of affairs, as shifting to E-mode is a challenge to their already settled way of
dealing. Changing and adopting the E-model of dealing with court affairs will bring
effectiveness, and it will lead to fewer human resources dealing with simple instances of carrying
out bail applications.

Court of South Africa-

The court of South Africa has taken a liberal approach during the pandemic, whether it be
declaring guidelines passed by the government as unconstitutional or guiding the nation's
guidelines. In the recent judgment, Chief Justice Mogoeng issued a directive specifying that
subordinate courts would remain open for urgent matters, including "bail applications and
appeals or matters relating to violations of liberty, domestic violence, maintenance and matters
involving children." It is remarkable to note that in chief justice Mogoeng approach, bail
application comes first in what constitutes as "urgent matter" for the court to take cognizance.
The decision made by the court of South Africa acts as a sucker punch to what constitutes a high
critique order passed by the higher Judiciary of India, restricting individual liberty and his varied
fundamental right up to the limits of order passed by the executive.

Conclusion
In this pandemic, many challenges have been put forth in front of our Judiciary, whether it be
dealing with the issue of migrant laborers, judicial review of varied state government guidelines,
or issue of under-trial prisoners. So far, the Judiciary lacks its competency to answer the same.
The issue of granting bail application is of prime importance. Judiciary cannot phrase restricting
one's liberty and freedom as non-important and cannot curb the fundamental rights on the pretext
of executive order or lack of resources.
In author's point of view, the need for E-Judiciary is the first significant change to be done so
that in the future no one's liberty is curbed for the mere reason of non-availability of human
resources, furthermore, it is the duty of the SC to pass an order for establishing the rule of law
regarding bail and to remove ambiguity erupted over the time, as many High courts have
imposed unconstitutional condition, such as donating money to PM cares fund, installing
Aarogya Setu app and many more, which inadvertently lead to ambiguity in the law of bail, and
should be cured by the Apex Court. The true justice was later rendered by the Supreme court
when they put a stay on order passed by the Rajasthan High court, but this particular instance
again reminds us of the ADM Jabalpur judgment, the darkest hour for Indian Judiciary.