Chief Justice of India BR Gavai said that courts have forgotten the principle “bail is the rule, jail is the exception.” He recalled how he revived it in key 2024 cases involving Prabir Purkayastha, Manish Sisodia, and K Kavitha.
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Kerala: Chief Justice of India (CJI) BR Gavai said that Indian courts have recently not been following the important legal principle –
“Bail is the rule, jail is the exception.”
He said this while speaking at an event in Kochi to remember the great Supreme Court judge, Justice VR Krishna Iyer.
CJI Gavai mentioned that he has tried to bring back this important principle during his work in 2024, especially in cases related to Prabir Purkayastha, Manish Sisodia, and K Kavitha.
“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.”
These three cases that CJI Gavai mentioned involved major arrests in 2024. Prabir Purkayastha, a journalist, was arrested by the Delhi Police under the UAPA (Unlawful Activities Prevention Act).
Manish Sisodia, a senior leader of the Aam Aadmi Party, and K Kavitha, from Bharat Rashtra Samithi (BRS), were arrested in connection with the controversial Delhi liquor policy case.
In all these cases, the Supreme Court benches led by Justice Gavai heard bail applications and also questioned how the investigating agencies were handling the arrests.
“Bail is the rule, and jail is the exception. In the recent past, this principle was somewhat forgotten.”
The event took place at the 11th Justice VR Krishna Iyer Memorial Law Lecture in Kochi on July 6. It was organised by the Sarada Krishna Satgamaya Foundation for Law and Justice.
CJI Gavai delivered his speech on the topic:
Role of Justice VR Krishna Iyer in Balancing Fundamental Rights and Directive Principles of State Policy.
While speaking about Justice Iyer’s historic work on bail laws, CJI Gavai referred to the famous 1978 case Gudikanti Narasimhulu v. High Court of Andhra Pradesh, where Justice Iyer made a strong case for humane and practical bail conditions.
“In Gudikanti Narasimhulu v. High Court of Andhra Pradesh (1978), 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. 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 praised Justice Iyer for his deep concern for issues like gender inequality, poor prison conditions, and the rights of marginalised groups.
“Justice Iyer defined fundamental rights as well as charters of freedom, not just to acquire and hold wealth, but freedom from poverty and misery.”
He went on to explain how Justice Iyer laid the foundation for the Public Interest Litigation (PIL) system in India, which gave voice to the poor and those who could not approach courts on their own.
“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.”
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“Justice Iyer defined fundamental rights as well as charters of freedom, not just to acquire and hold wealth, but freedom from poverty and misery.”
The lecture was held at the Kerala High Court. The event saw participation from several present and former judges of the Supreme Court and High Courts, including Kerala High Court Chief Justice Nitin M Jamdar, Justice Devan Ramachandran, and former judge Justice K Balakrishnan Nair.
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