Krishna Iyer's Principle 'Bail Is The Rule' Was Somewhat Forgotten By Courts Recently: CJI BR Gavai

Chief Justice of India BR Gavai on Sunday acknowledged that the principle that bail is the rule and jail the exception had been somewhat forgotten in recent times.However, he said he had an opportunity to reiterate it in the bail cases of Manish Sisodia and Kavita v. Enforcement Directorate last year. He noted that Justice VR Krishna Iyer was in favour of granting bail with protective and curative conditions and opposed imposing onerous conditions relating to security and sureties. The CJI highlighted that Justice Iyer believed undertrials should not be jailed for long periods.“Justice Iyer is known for breaking new grounds in Indian judiciary by asserting what was once taboo - bail is the rule and jail the exception. I admit that in recent past this principle was somewhat forgotten but I had an opportunity the last year to reiterate this legal principle in the cases of Prem Prakash, Manish Sisodia and Kavitha versus the ED”, Chief Justice Gavai said.This concern that the principle has been forgotten has been repeatedly flagged by the Supreme Court itself recently, especially in cases under stringent laws like the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities (Prevention) Act (UAPA).In Manish Sisodia's bail order, the Supreme Court observed that trial courts and high courts have “forgotten the principle that bail is the rule and jail an exception,” opting instead to “play safe” by routinely denying bail.Last year, while denying bail to a man charged under the UAPA, the Supreme Court bench of Justice MM Sundresh and Aravind Kumar observed that under the UAPA, "jail is the rule and bail an exception". However, this judgment was later distinguished by another bench led by Justice Abhay Oka that held that 'bail is the rule, jail is the exception' even in special statutes like the UAPA.The CJI delivered the 11th Justice VR Krishna Iyer Memorial Lecture organised by Sarada Krishna Satgamaya Foundation For Law And Justice at the Kerala High Court on the topic “Role of Justice VR Krishna Iyer in Balancing the Fundamental Right and Directive Principles of State Policy.”CJI Gavai described Justice Krishna Iyer as one of India's most transformative judicial minds who revolutionized the legal system. He said Justice Iyer was deeply connected to the cause of the people, and that his jurisprudence was not confined to courtrooms but reflected the struggles of the common man.In the Constitution Bench judgment on sub-classification of Scheduled Castes for reservation, CJI Gavai said he had referred to Justice Iyer's observation in State of Kerala v. NM Thomas, where he had said every state must achieve actual equal partnership for Scheduled Castes.Describing Justice Iyer as “a philosopher on the bench, a poet in jurisprudence and a visionary in public life,” CJI Gavai said his judgments were “moral compasses infused with compassion, equity and deep constitutional insight.” He said Justice Iyer saw the Constitution as a dynamic instrument of social transformation and remained a human rights champion throughout his life.Speaking on the historical conflict between Directive Principles and Fundamental Rights, the CJI said that until 1973, courts had consistently ruled that in case of conflict, Directive Principles must give way to Fundamental Rights. This changed with the 13-judge bench in Kesavananda Bharati, which not only laid down the basic structure doctrine but also resolved the conflict by holding that Fundamental Rights and Directive Principles are together the conscience of the Constitution. The CJI noted that Justice Krishna Iyer believed that DPSPs and Fundamental Rights were “symbiotic, not antagonistic”, and “two sides of the same constitutional coin.”Referring to Justice Iyer's opposition to the death penalty, CJI Gavai said he was influenced by seeing an innocent man hanged as a young lawyer. In Ediga Anamma v. State of Andhra Pradesh, Justice Iyer commuted a death sentence to life imprisonment and outlined the Indian law's positive indicators against the death penalty. In Rajendra Prasad v. State of Uttar Pradesh, he restricted the scope of death penalty under Section 302 (murder) IPC. Justice Iyer's view, the CJI said, was that the death penalty was barbaric and uncivilized, and he continued to advocate for its abolition even outside court, despite the court's earlier ruling upholding it in Jagmohan Singh v. State of UP.In NM Thomas, CJI Gavai said Justice Iyer helped change the understanding of Article 16(4) from being an exception to being a facet of the larger guarantee of equal opportunity under Article 16(1). Justice Iyer had described Article 16(4) as a constitutionally sanctioned classification inserted due to the drafters' over-anxiety for clarity.“Justice Krishna Iyer described Article 16(4) as an emphatic statement of equal opportunity emphasizing that it was not a mere exception but a vital part of the constitutional guarantee of equality. He viewed it as an illustration of...

Krishna Iyer's Principle 'Bail Is The Rule' Was Somewhat Forgotten By Courts Recently: CJI BR Gavai

Amisha Shrivastava

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