The unholy nexus: How punitive bail conditions erode fundamental rights

Bail with excessive conditions is no bail. To impose excessive and onerous bail conditions is to take away with the left hand what is given with the right.

The institution of bail, which serves as the procedural safeguard for personal liberty, finds its constitutional anchor in Articles 14, 19 and 21 of the Constitution of India. Yet, the promise of ‘bail as rule, jail as exception’ rings hollow when courts transform the conditions of release into instruments of premature punishment.

A series of disturbing instances has emerged across the Indian judiciary where courts have effectively confused the purpose of pre-trial detention with post-conviction sentencing. While this judicial overreach manifests in various forms like conflating criminal proceedings with civil disputes, the most insidious and constitutionally significant pattern is the imposition of conditions that directly infringe upon fundamental rights, particularly the rights to privacy and freedom of speech.

The purpose of this article is to examine this disturbing trend by analysing various Supreme Court judgments and demonstrating how certain bail conditions not only lack a nexus to the purpose of bail, but also directly infringe upon the fundamental rights to privacy and free speech and transform the very instrument of liberty into a tool of punishment.

In the Indian context, bail flows directly from the fundamental right to life and personal liberty under Article 21, operating at the intersection of personal liberty and social interest. It is the procedural safeguard that breathes life into the ‘presumption of innocence’, often described as the ‘golden thread’ that runs through the entire tapestry of criminal jurisprudence. The justification of this presumption in favour of the accused is the great power imbalance between the state and the accused. Granting bail is, therefore, an act which reinforces this presumption, and serves as a bulwark against arbitrary arrest and prolonged detention. The grave consequences of denial of bail to a person who otherwise deserved it has already been noted by the Apex Court.

Considering the principles discussed above, the limited purpose of bail is only to secure the presence of the accused and to prevent the ends of justice from being defeated. To this end, the primary framework for bail adjudication must be the ‘triple test’ i.e. the flight risk, the risk of tampering with evidence and influencing the witnesses. Therefore, any condition imposed for the grant of bail must have a direct and rational nexus to mitigating one of these risks.

However, even the jurisprudence of the Supreme Court and the High Courts has not been consistent on this. While there has been repeated emphasis on the centrality of the ‘triple test’ discussed above, the courts have also listed various other factors to be considered while deciding the question of bail, ranging from seriousness of the offence to prima facie guilt of the accused. This jurisprudential ambiguity has resulted in independent consideration of these factors without linking them with the ‘triple test’. Thus, there has been inconsistency and subjectivity in bail adjudication by the trial courts. The problem is not merely that the trial courts are misapplying the law, but that the law as articulated from the top is susceptible to misinterpretation.

The perilous pin: Bail conditions and the right to privacy

A critical area of judicial overreach involves the imposition of bail conditions that directly infringe upon an individual’s fundamental right to privacy under Article 21. The landmark case of Frank Vitus v. Narcotics Control Bureau serves as a quintessential example of this phenomenon. A Nigerian national accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act was granted bail by the Delhi High Court subject to a condition requiring him to “drop a pin on Google Maps” for the investigating officer to continuously access and monitor his location. This condition effectively transformed liberty into a state of digital confinement, creating a form of constant surveillance that is antithetical to the very meaning of freedom.

Upon appeal, the Supreme Court unequivocally found this condition to be ultra vires and ordered its deletion. The Court reasoned that any bail condition that enables constant tracking of an accused’s movements violates the right to privacy guaranteed under Article 21 of the Constitution. The purpose of bail conditions is to ensure the accused’s presence, not to keep a “constant vigil” on their movements, which would infringe on their right to privacy and effectively amount to a form of confinement even after release.

Gag orders: Bail conditions and the right to free speech

Another form of unconstitutional bail condition is the imposition of gag orders, which essentially violates an individual’s right to freedom of speech and expression under Article 19(1)(a). This forces the accused to surrender his fundamental rights in order to be released on bail.

Some stark examples of this disturbing judicial trend are the much-discussed cases of Ranveer Allahbadia and Ali Khan Mahmudabad. Ranveer, a social media influencer, was facing arrest in multiple FIRs for his controversial remarks at a comedy show. Although the Supreme Court granted him interim protection, it restrained him from airing any other show till further orders. This was a clear gag order tied to his professional work, directly impacting his right to express himself. Similarly, Mahmudabad, arrested for his alleged anti-national social media posts, was granted interim bail by the Supreme Court. But only on the condition that he will not write any posts or articles in relation to the social media posts in question. He was also barred from expressing any opinion in relation to the terrorist attack on Indian soil or the counter-response given by India.

This trend has also permeated into the political sphere, as evident from the case of Siba Shankar Das. He was granted bail by the Orissa High Court on the condition that he refrains from engaging in any political activities, either directly or indirectly. This condition violated his right to freedom of speech and expression and the right to form associations. The Supreme Court, this time, rightly deemed this condition unconstitutional and nullified it, affirming that an accused cannot be forced to waive their fundamental rights as a prerequisite for their liberty.

These gag orders create a chilling effect on civil liberties that extends far beyond the individual accused. When the judiciary, which is meant to be the final guardian of fundamental rights, is willing to silence academics, public figures and political leaders as a condition of their liberty, it sends a chilling message to the society. This erodes the foundation of a robust democratic discourse, as it discourages legitimate dissent and academic freedom.

What emerges from this analysis is a paradox: the very institution entrusted with safeguarding liberty and rights has, in a number of cases, become a source of their erosion. The trend of imposing unconstitutional bail conditions is not merely a legal misstep, but represents a fundamental deviation from the core principles of criminal jurisprudence. Therefore, while legislative action is a necessary long-term solution, the immediate imperative is for the Supreme Court to assume a leadership role. This would involve laying down comprehensive and binding guidelines that reaffirm the primacy of the ‘triple test,’ establish a clear hierarchy of factors for bail adjudication, and explicitly prohibit extraneous and unconstitutional conditions like those that violate fundamental rights. In the long run, a collective effort by the legislature and the judiciary will still be required to restore the institution of bail to its rightful place as a bulwark of liberty.

Bhavik Kaushik is a Master's graduate at NLU Delhi.

Shivangini Khanduri is PhD Scholar at Graphic Era Hill University, Dehradun.