-Mohamed Thahir Sulaiman
INTRODUCTION
In its recent judgment in Jalaluddin Khan v. Union of India, the Supreme Court has reemphasized the well-established principle that “bail is the rule, jail is the exception,” even in cases arising under special statutes like the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’). However, this ruling conflicts with the Court’s earlier decision in Gurwinder Singh v Union of India, where it was held that this basic principle does not apply to UAPA cases. Rather, the Court clarified that in cases under special statutes like the UAPA, the determination of bail should focus primarily on whether there is sufficient justification to deny bail, thus deviating from the basic rule. While general bail law is governed by Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), statutes like the UAPA contain distinct provisions regulating bail. Yet, such conflicting interpretations of bail law are evident in both the general and special statute contexts.
This article argues that the Jalaluddin Khan judgment is right in pivoting back to a more liberal understanding of bail law while being grounded in the liberal model of the individual. Under this model, the individual is conceived as a juridical subject with dual characteristics—responsible under the law but also potentially dangerous in the context of public order. This duality complicates applying uniform principles in bail cases, particularly under special statutes. The article proceeds as follows. First, it delves into the liberal interpretation of bail. Second, it highlights the shift towards the emphasis on public order concerns. Third, it explores the liberal model of the individual and the dual nature of the juridical subject. Finally, it examines the conflict in Jalaluddin Khan within this broader analytical framework.
LIBERAL PERSPECTIVE ON BAIL
Under Sections 480 and 483 of the BNSS, magistrates and High Courts are vested with the power to grant bail in non-bailable offences. However, in the absence of stringent guidelines, the decision to grant bail has largely been left to the discretion of the courts. Early jurisprudence on bail, such as the ruling in Rao Harnarain Singh v The State, aligned with the constitutional values of the time, thus emphasizing the protection of the presumption of innocence at the bail stage. The judgment enables this protection in two key ways: first, by mandating certain individualized factors that courts must consider when exercising their discretion, such as witness tampering and flight risk, and second, by focusing on whether these factors are satisfied rather than on the accused’s potential guilt or other considerations irrelevant to the accused.
These two elements have thereafter fostered a liberal interpretation of bail, where courts have generally prioritized the protection of personal liberty. In the State of Rajasthan v. Balchand, the Supreme Court firmly established the principle that “bail, not jail”, is the basic rule, and exceptions to this must be based on well-recognized judicial criteria. Moreover, the exercise of judicial discretion in granting bail must be in line with constitutional values.
Following the landmark decision in Maneka Gandhi, the Court in Moti Ram v State of M.P. further underscored that deprivation of liberty is only permissible if it is sanctioned by law. Moreover, the court also emphasized the need for courts to ensure a fair procedure, guarding against judicial arbitrariness that could lead to the deprivation of liberty. As also held in Sanjay Chandra v CBI, it was emphasized that the discretion to grant bail must be exercised based on the facts and circumstances of each case, uninfluenced by public sentiment or external pressures.
The Court in Bhagirathsinh v State of Gujarat reiterated that the power to grant bail should not be conflated with the imposition of punishment, noting that the denial of liberty in the form of pre-trial detention could have serious consequences. This line of reasoning underscores the judicial responsibility to balance the rights of the individual with broader societal concerns while ensuring that personal liberty is not unjustly curtailed before trial.
TOWARDS THE PUBLIC ORDER PERSPECTIVE
The liberal interpretation of bail, while continuing to define the phraseology and articulation of the law of bail, has, however, been severely diluted in recent decades, resulting in the undermining of both of its characteristics. Rather than relying primarily on individualized determinants, recent jurisprudence has shifted towards prioritizing broader societal interests, often independent of the specific facts of the case.
This shift is evident in cases such as Shahzad Hasan Khan v Ishtiaq Hasan Khan, where the Supreme Court acknowledged that while the protection of personal liberty remains crucial, the legal process must also balance the interests of society at large. The Court warned that failure to maintain this balance could erode public confidence in the judiciary, potentially encouraging private retribution.
In Masroor of State of U.P., the Court reinforced this approach, asserting that the protection of personal liberty cannot be absolute in every case. It further held that in the delicate balancing act between individual rights and societal interests, the collective well-being of the community may, in certain instances, take precedence over personal liberty. Consequently, the focus has shifted away from individualized determinants, with greater emphasis placed on the nature of the crime and the imperative to protect societal interests.
This shift in bail jurisprudence has been especially pronounced in the context of special statutes like the UAPA, with the presumption of innocence being effectively reversed in NIA v Zahoor Ahmad Shah Watali. Further, in Gurwinder Singh,the court explicitly ruled that in UAPA cases, the conventional rule that “bail is the rule, jail is the exception” must be inverted. Under the UAPA, it held that courts must be guided by a different standard where, in assessing whether or not to grant bail as per the UAPA, the primary task is to determine whether there is sufficient justification to deny bail. Therefore, this represents a significant departure from earlier liberal interpretations of bail, signalling a shift towards prioritizing public order and security over individual liberty in cases involving special statutes.
LIBERAL MODEL OF THE INDIVIDUAL
This shift in bail jurisprudence, as revealed in this article thus far, may be viewed in light of a broader transformation in criminal law, which scholars Chandra and Satish describe as a move from the “Liberal Perspective“—where criminal procedures are seen as limitations on the state’s power to arbitrarily deprive individuals of liberty—toward the “Public Order Perspective,” which prioritizes social control and security over individual liberty when the two interests conflict. However, this shift, while significant, still operates within the larger framework of the liberal model of the individual.
As per scholar Chirag Balyan , this liberal model centres around the concept of the “juridical individual,” which forms the core of its justificatory framework for structuring offenses and defences in a liberal society. The juridical individual is envisioned as being rational and accountable for the consequences of their actions and thus expected to conform to legal rules within society. This accountability is the basis for justifying punishment within liberal legal theory, as individuals are considered responsible for their actions and subject to sanction when they violate the law.
At the same time, this responsible individual is also seen as potentially dangerous—a threat to society, emanating from his ability to act on their own will. This thus creates a dual nature of the individual, being both rational and dangerous, which then provides the justification for the state’s ability to suppress the very freedoms individuals possess. Consequently, the liberal model carries a double-edged nature: it serves both to check state authoritarianism and to legitimize it. This creates a dialectical relationship between the contradictory notions of the responsible and dangerous individual.
Within this theoretical framework lies a central ambiguity in criminal law—whether its primary aim is to protect individual liberty or to advance societal interests. This ambiguity continues to shape the development of criminal procedure, including bail jurisprudence, where courts must constantly navigate between these competing priorities. With changing socio-political contexts, this ambiguity, too, allows for the liberal model of criminal law to shift from a focus on liberty to a focus on security, corresponding to the shift from the responsible individual to the dangerous individual.
JALALUDDIN KHAN: A RETURN TO “BAIL, NOT JAIL”
Analysing the contemporary developments in Jalaluddin and the conflict with the Gurwinder judgment, such jurisprudential conflicts must be understood within this larger theoretical model. While Gurwinder is quoted, Jalaluddin does not overrule it, considering both are of co-equal benches. Thus, the significant question here is regarding the role of the criminal justice system in society.
While it is acknowledged that bail jurisprudence shaped by the Public Order Perspective still operates within the broader liberal model of criminal law, it has nonetheless led to what can be described as a “systemic presumption of criminality.” By compromising the presumption of innocence to the extent that it has, this shift has transformed categorical legal principles into forms of factual prejudice. Cases such as Watali and Gurwinder have significantly undermined established criminal law principles by introducing a punitive logic that prioritizes incarceration even at the bail stage. This development marks a troubling departure from traditional liberal ideals, as it increasingly equates pre-trial detention with punishment.
In this context, the judgment in Jalaluddin serves as a much-needed corrective. Although it does not explicitly overrule previous decisions, it represents a return to a liberal interpretation of bail rooted in constitutional values. Jalaluddin reasserts the importance of individual liberty and the presumption of innocence, signalling a shift away from the punitive approach that has taken hold in recent years. This judgment rebalances bail jurisprudence, reminding courts that pre-trial detention must not be used as a pretext for punishment and that the core principles of criminal justice must prioritize protecting personal freedom until guilt is proven.
CONCLUSION
In conclusion, this article situates bail jurisprudence within the liberal model of the juridical individual, asserting that the Jalaluddin judgment rightly reaffirms the liberal perspective by upholding constitutional values and reiterating the foundational principle of “bail, not jail.” Furthermore, by highlighting the tension between protecting individual liberty and promoting societal interests, this article contextualizes the Jalaluddin decision in contrast to the Gurwinder ruling, which prioritized the public order perspective, thereby offering a nuanced understanding of evolving bail jurisprudence.
The author is a second-year BA.LLB (Hons) student at the National Law School of India University (NLSIU), Bangalore. He is passionate about Constitutional Law, Criminal Law and History.