Another caution: Don’t override basics of law

SC is concerned that denying bail reverses the presumption of innocence

The Supreme Court’s ruling last week, granting bail to Prem Kumar, an aide of Jharkhand Chief Minister Hemant Soren, marked a significant event in the evolution of the country’s bail jurisprudence. Prem Kumar had been arrested by the Enforcement Directorate (ED) in a money laundering case. The court asserted without ambiguity that the norm ‘’bail is the rule and jail is the exception’’ was applicable even in cases under the stringent PMLA (Prevention of Money Laundering Act). The ruling is important because laws such as the PMLA and the UAPA (Unlawful Activities Prevention Act) have been designed in such a way that bail is almost impossible to get under them. This is because the presumption of innocence, which is basic to the rule of law, has been reversed in these laws. By reasserting the right to bail in these cases, the court has also made the statement that no law, however stringent, can be an exception to the rule of law.  

The court made it clear that Section 45 of the PMLA, which requires the accused to prove their innocence for securing bail, does not override Article 21 of the Constitution which makes freedom the rule and its deprivation the exception. The court extended this idea through a series of recent judgments. It has also, through these judgements, diluted a 2022 judgement of its own which had upheld all the stringent provisions of the PMLA. In October 2023, the court ruled that the accused under PMLA should be informed of the grounds of arrest, though the law had said that it was not mandatory. In July this year, in Delhi Chief Minister Arvind Kejriwal’s case, the court raised questions about the ED officials’ powers to make arrests, and in effect made these powers liable to challenge in a court.  

The court has diluted the bail provisions through several judgments. In May this year, it ruled that a person who had spent half of the maximum sentence as an undertrial should be released on bail even in PMLA cases. In granting bail to former Delhi Deputy Chief Minister Manish Sisodia, it said that the law can be relaxed and bail granted if the trial is delayed and the accused has undergone a long period of incarceration. In the case of BRS (Bharat Rashtra Samithi) leader K Kavitha, it said last week that an “undertrial’s custody should not turn into punishment.’’ It also raised questions about the ED’s conduct and procedures. The court has softened the tough provisions of the PMLA and other stringent laws with these rulings, and asserted that the Constitutional guarantee of individual freedom and right to justice cannot be stymied by draconian laws.