'Bail is the rule' principle was forgotten; tried to reiterate it in Sisodia, Kavitha cases: CJI BR Gavai

Chief Justice of India BR Gavai on Sunday remarked that the legal principle of "bail is the rule, jail is the exception" has not been followed by courts in the recent past.

The Chief Justice of India (CJI) was speaking on the work of legendary Supreme Court judge Justice VR Krishna Iyer when he lamented the forgotten rule. He added that he has tried to reiterate the principle while handling the Prabir Puryakastha, Manish Sisodia, and K Kavitha cases.

"Justice Krishna Iyer also strongly believed that undertrials should not be kept in jail for long periods without trial. He is well known for breaking new ground in the Indian judiciary by asserting what was once considered a taboo - 'Bail is the rule, and jail is the exception.' In the recent past, this principle was somewhat forgotten. I am happy to state that I had the opportunity in the last year, 2024, to reiterate this legal principle in the cases of Prabir Purkayastha, Manish Sisodia, and Kavita v. ED," he said.

The cases mentioned by CJI Gavai in his address concerned the arrests of three individuals (in separate cases) in 2024. Puryakastha was arrested by Delhi Police under the Unlawful Activities (Prevention) Act (UAPA). Aam Aadmi Party leader Sisodia and Bharat Rashtra Samithi (BRS) leader Kavitha were arrested in connection with the alleged Delhi liquor scam.

Bail applications or petitions challenging the legality of arrests in the three cases were handled by Supreme Court Benches headed by Justice Gavai, and the investigating agencies responsible in each case were pulled up for their handling of the case and the arrests.

CJI Gavai was speaking at the 11th Justice VR Krishna Iyer Memorial Law Lecture in Kochi on Sunday, July 6.

The event, hosted by the Sarada Krishna Satgamaya Foundation for Law and Justice, focused on CJI Gavai's lecture on the topic 'Role of Justice VR Krishna Iyer in Balancing Fundamental Rights and Directive Principles of State Policy.'

Elaborating on Justice Iyer's contribution to expanding the jurisprudence on bail, CJI Gavai said,

"In Gudikanti Narasimhulu v. High Court of Andhra Pradesh (1978), 26 Justice Iyer opened his order with the poser: 'Bail or Jail?' He outlined the relevant factors, which included the period in prison already spent and the prospect of the appeal being delayed for hearing. He was in favour of granting bail, stipulating protective and curative conditions. He was definitely against imposing onerous conditions relating to security and sureties.27 As he ruled, and I quote: 'Heavy bail from poor man is obviously wrong. Poverty is society’s malady and sympathy, not sternness, is the judicial response.'"

CJI Gavai also lauded the late Justice Iyer for his dedication to addressing gender discrimination, prison conditions, and the vulnerability of marginalised persons.

"Justice Iyer defined fundamental rights as well as charters of freedom, not just to acquire and hold wealth, but freedom from poverty and misery," CJI Gavai added.

He further spoke about Justice Iyer's contributions to the jurisprudence on Public Interest Litigation (PIL).

"A new public interest jurisprudence was developed. The traditional 'locus standi' norms were abandoned, epistolary litigation was promoted, and a strategy for assisting the disadvantaged and underprivileged was devised. As a result of this profound shift, the Supreme Court gained significant worldwide prominence and attention. This innovative weapon, which was initially employed by public-spirited citizens to file PILs on behalf of sections of the society that were unable to do so on their own on account of the economic and social constraints, is still bringing about unheard-of improvements in people's daily lives today," he said.

The event, conducted at the Kerala High Court and live-streamed by Bar & Bench as the media partner, saw several current and former judges of the Supreme Court and High Courts in attendance.

Kerala High Court's Chief Justice Nitin M Jamdar, judge Justice Devan Ramachandran and former judge Justice K Balakrishnan Nair also spoke at the event.

Justice Nair delivered the welcome address, Justice Jamdar the presidential address, and Justice Ramachandran the commemorative address. Advocate Sanand Ramakrishnan, secretary of the Sarada Krishna Satgamaya Foundation, delivered the vote of thanks.

[Watch the lecture]

[Read our live coverage of the event]