CHAPTER – III

Bail in Indian Criminal Justice System

INTRODUCTION

The common law principle, ―every person deemed to be innocent, until proved guilty
beyond doubt‖, apply in India. As bail is except anticipatory bail under Section 438 is
post arrest and pre-trial remedy to the person who alleged to be accused on some
primafacie evidences, but not proven guilty as due to pendency of trial or inquiry.1 Bail
is release of a person from legal custody by undertaking that he shall appear at the time
and place designated, as bail is mainly pre-conviction stage- i.e. only on basis of some
complaints and some sort of investigation. So basically there is some sort of
encroachment by the police that police prejudice the liberty right of the said arrestee as
he is till now not declared to be accused or convicted and as our criminal justice also
based on the principle of presumption of innocence unless and until he proven guilty. So
concept of bail involve two aspect as in one hand involves the personal liberty
guaranteed under Article 21 of the Constitution and on the other hand involve the safety
and security of the society and for that purpose there should be some sort of
encroachment on the liberty of the suspected person. So that there to bridge the gap
between the two opposite and contrary interest in one way societal interest to arrest the
person suspected or accused and on the other hand the individual liberty of the person
which guaranteed as a fundamental right under Article 21 of the Constitution by
releasing him on some bail or bond.2

As Liberty occupies a place of pride in our socio-political order. Who could better knew
the value of liberty more than the founding fathers of our Constitution. Article 21 of
the Constitution provides that no person shall be
1
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 74.
2
Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis, p. 18.
 deprived of his personal liberty except according to procedure established by law. It
follows therefore, that the personal liberty of an individual can be curbed by procedure
established by law.3 The Code of Criminal Procedure, 1973, is one such procedural law.
That law permits curtailment of liberty of anti-social and anti-national elements. Article
22 casts certain obligations on the authorities in the event of arrest of an individual
accused of the commission of a crime against society or the Nation. In cases of under-
trials charged with the commission of an offence or offences the court is generally
called up to decide whether to release him on bail or to commit him to jail.4

4.1 FUNDAMENTAL RIGHTS AND BAIL: CONCEPT IN DIFFERENT

CONSTITUTION

Fundamental rights are not new rights but are the natural rights with which a man is
born. They are recognised as inseparable or inviolable. Under the Constitution, laws
inconsistent or in conflict with fundamental rights except within prescribed limits
permitting curtailment of such rights, are void. The state shall not make any law,
which takes away or abridges such rights. Any law made in contravention of this
prohibition shall be void to the extent of the contravention. Backstone in his celebrated
commentaries‘ on the Laws of England, pronounced his philosophy of natural or
absolute rights which he reduced to three principle or primary articles:5

1. The right of personal security.

2. The right of personal liberty.

3 Right of private property.6

3
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 91.
4
State of Maharashtra v. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 at p. 2295 : 1989 Cri LJ 2317 : 1989
Supp (2) SCC 605 : 1990 SCC (Cri) 126.
5
Article 8 of US Constitution.
6
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 3.
4.2 FUNDAMENTAL RIGHTS UNDER THE AMERICAN CONSTITUTION

Article 6 lays down that in all criminal prosecutions the accused shall enjoy the rights to
a speedy and public trial by any impartial jury of the state and district wherein the crime
shall have been committed ,which district shall have been previously ascertained by
law, and to be informed of the nature.7

Article 8 lays down that excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted. Section 1(i) of Article 14
lays down that all person born or naturalised in the United States and subject to the
jurisdiction thereof, are citizen of the united states and of the state wherein they
reside. No state shall make or enforce any law, which shall abridge the immunities of
the citizens of the United States, nor shall any state deprive any person of life, liberty or
property without due process of law, nor deny any person within its jurisdiction an
equal protection of law.

4.2.1 Due Process of Law

The liberty protected by due process includes the rights of the citizens to be not merely
free from physical restraint of his person, as by incarceration, but is deemed to embrace
the right of the citizen to be free in enjoyment of all his faculties, to be free to use them
in all lawful ways, to live and work where he will, to earn his livelihood or avocation
and, for that purpose, to enter into all contracts which may be proper, necessary and
essential to his carrying out to a successful.8

The phrase ‗due process‘ has not been defined in the American Constitution. Its
meaning and scope has been allowed to be developed by adjudication. Thus the
expression means the process of law, which hears before it condemn, which

7
Article 6 of U.S. Constitution.
8
Allegeyer v. Lousiana, (1897) 167 US 578.
 proceeds upon inquiry and renders judgment only after a trial 9 it, therefore ensure that a
man‘s legal rights should not be affected by proceedings taken behind his back. He
should be given due notice of the proceedings of the time and place including the
tribunal before which the claim is to be made, of the nature of the case against him, and
be afforded sufficient liberty to prepare and make his answer.10 In a capital case due
process of law involves the right of the accused to be defended by a counsel, and denial
of such a right would invalidate the trial11 denial of due process in a criminal trial is
failure to observe fairness in trial essential to the concept of justice. 12 Even a judgment
based on a confession extorted under duress is denial of due process. 13 No free man
shall be arrested or detained in prison or deprived of his freedom or out- lawed or
banished or in any way molested and will not set forth against him nor send against him,
unless by the lawful judgment of his peers, and by the law of the land.14

4.3 FUNDAMENTAL RIGHTS UNDER THE BRITISH CONSTITUTION

There is no written Constitution in England and there is no declaration of fundamental

rights under the English Constitution. In England, the Megna Carta of 1215 and the
petition of rights 1628, lays down that no man shall be arrested or imprisoned or
disseized, outlawed or exiled for in any way molested save by the lawful judgment of
his peers or the law of the land. Thus, the principle of the process of law itself is
equivalent to the law of the land in England and had its origin in the 13th century, and
this protection of liberty of the individual has been confirmed by successive english
sovereigns. Even though there is no formal declaration of fundamental rights, the
four great

9
Dartmouth College Case 4 Law Edn 129; Trustees of Dartmouth College v. Woodward, 4 Wheeton 518.
10
Roller v. Holly, (1900) 176 WS 398.
11
Poweel v. Alabama (1932) 287 US 45.
12
Lisseuba v. Califronia (1941) 314 US 219.
13
Chambers v Florida (1940) 309 US 227; Asheroft v. Tennessee, (1944) 322 US 143.
14
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 5.
 charters, The Magna Carta, the Petition of Rights, the Bill of Rights and The Act of
Settlement contain provisions upholding the liberties of the subjects. But the liberties
guaranteed under these charters are not beyond legislative interferences. Since the
parliament is supreme and can pass any law as it thinks fit, the liberty of an individual
in England is a liberty confined and controlled by law, whether common law or
statute.15

The fundamental difference in the concept of individual liberty between America and
England is that in America the Constitution is intended to act as a limitation on the
power of the legislature as well as the executive, whereas in England the maxims of
liberty and justice are only applied as guards against executive usurpation and tyranny.16
In England no member of the executive can interfere with the liberty of a subject unless
he can support the legality of his action before a court of justice.17

4.4 PROTECTION OF PERSONAL LIBERTY

Deprivation of liberty must be considered a punishment, unless it can be required to

ensure that an accused person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment begins after conviction,
and that every man is deemed to be innocent until duly tried and duly found guilty.
From the earliest time, it was appertained that detention in custody pending completion
of trial could be a cause of great hardship. From to time, necessity demands that some
un-convicted person should be held in custody pending trial to secure their attendance at
the trial but in such cases, ―necessity‖ is the operative test. In this country, it would be
quite contrary to the concept of personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon which he has not been
convicted or that in any circumstances, he should be deprived of his

15
Liversidge v. Anderson, (1941) 3 AII ER 338:110 LJKB 724: 1942 AC 206.
16
A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27:1950 SCJ 174.
17
Eshugbayi Eleko v. Officer Administering the Govt. of Nigeria, AIR 1931 PC 248: 61 Mad LJ 975: 1931 AC
662.
 liberty upon only the belief that he will temper with the witnesses if lift at liberty, save
in the most extraordinary circumstances. Apart from the question of prevention being
the object of a refusal of bail, one must not lose sight of the fact that any imprisonment
before conviction has a substantial punitive content and it would be improper for any
court to refuse bail as a mark of disapproval of former conduct whether the accused
has been convicted for it or not or to refuse bail to an un-convicted person for the
purpose of giving him a taste of imprisonment as a lesson.18 This decision has to be
made, mainly in non- bailable cases, having regard to the nature of the crime, the
circumstances in which it was committed, the background of the accused, the possibility
of his jumping bail.19 The principle underlying the grant of bail as envisaged in this
section is that an accused person is presumed in law to be innocent unless he is proved
to be guilty.20

The granting of bail will facilitate him to defend himself properly better that he could
were he kept in custody.21

4.5.1 Relevance and Importance of Personal Liberty

All human beings are born with some unalienable rights like life, liberty and pursuit of
happiness. The importance of these natural rights can be found in the fact that these are
fundamental for their proper existence and no other right can be enjoyed without the
presence of right to life and liberty.

Origin of liberty: ―liberty‖ can be traced in the ancient Greek civilization. The Greeks
distinguished between the liberty of the group and the liberty of the individual. In 431
B.C., an Athenian Statesmen described that the concept of liberty was the outcome of
two notions, firstly, protection of group from attack

18
Sanjay Chandra v. Central Bureau of Investigation, AIR 2012 SC 830: 2012 Cr LJ 702: 2011 AIR
SCW 6838.
19
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 91.
20
Bail Law and Procedures 6th edition by Janak Raj Jai, p. 16.
21
Emperor v. H.L. Hutchinson, AIR 1931 All 356 (358-59): 32 Cr LJ 1271: (1931) All LJ 515: 134 IC
842 at P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 74.
 and secondly, the ambition of the group to realize itself as fully as possible through the
self-realization of the individual by way of human reasons. Greeks assigned the duty of
protecting their liberties to the state. According to Aristotle, as the state was a means to
fulfil certain fundamental needs of human nature and was a means for development of
individual‘s personality in association of fellow citizens so it was natural and necessary
to man.22

According to Dicey means ―the right to personal liberty as understood in England

means in a substance a person‘s right not to be subjected to imprisonment arrest or other
physical coercion in any other manner that does not admit of legal justification‖ in other
words personal liberty means freedom from physical restraint and coercion which is not
authorized by law.23

It is very difficult to define‖ liberty‖ it has many facets and meanings. The philosophers
and moralists have praised freedom and liberty but this term is difficult to define
because it does not resist any interpretation. The term
―liberty‖ may be defined as the affirmation by an individual or group of his own
essence. It needs the presence of three factors, firstly, harmonious balance of
personality, secondly, the absence of restraint upon the exercise of a continuous
initiative.24

4.5.2 Nexus between Bail and Liberty

The requirement of the law to enlarge a person on bail is an expressive concern towards
the right of an accused to enjoy his ―personal freedom‘. A demand on the surety to
produce the accused person for purposes of fulfilling his obligation to the Court and to
accomplish the objective of the law to determine the liability of person so released is
meaningful in terms of ‗public interest‘ implist in the meaning of bail is also the use of
technique evolved for effecting

22
Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis, p. 293.
23
Available at http://www.slideshare.net
24
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 AIR 2011 SC 312.
 a symbiosis between these two co-equal values. 25 Since all these values are cherished by
the social order they cannot be regarded as being in competition with each other.
Neither one can be deemed to have precedence over the other. Accordingly, judicial
activism cannot spare itself from engaging in the exercise of striking a balance between
the two since both have to go hand in hand. In this context bail means ‗to set at
liberty a person arrested or imprisoned, or security being taken for his appearance on a
day at a place certain. Because the party arrested or imprisoned is delivered into the
hands of those who bind themselves or become bail for his due appearance when
required, in order to that he may be safely protected from prison. 26 Thus, protection of
the prisoner and his right to liberty is given equal emphasis along with the
requirement of his being brought to trial. The principal aim of bail is removal of
restrictive and punitive consequences of pre-trial detention of an accused. This is
achieved by delivering him to the custody of his surety who may be a third party. Such
custody may also be given to one‘s own self by way of furnishing a bond that on
demand made upon him to that he will readily attend the court. It is an obligation of law
enforcement agencies that if a criminal process is initiated by the alleged action of a
wrong-doer, it is to be accomplished. Therefore, this aspect assumes substantial
significance in the operation of bail. Accordingly, the grant of bail for release may be
allowed with appropriate conditions which may resultantly cover three types of
situations namely:

(a) Where the accused is deemed safe with the accused himself.

(b) Where it is delivered to the surety.

(c) Where it may be delivered to the state for safe custody.

The mechanism of bail is thus meant for manoeuvring a best arrangement for custodial
control of the accused in the system. The bail is a matter of right for safe keeping of
the accused to answer a charge. In order to implement this
25
Kamlapati Trivedi v. State of W.B., AIR 1979 SC 777.
26
Venkatarmaiya‘s Law Lexicon, Vol. 1, 131 (1971).
 right, the mechanism of bail has been designed to deliver the custody of the accused
either to self, to a surety or to the state, but in each case the accused is to be assured of
the beneficial enjoyment of regulated freedom. In all these cases, the common condition
attached is that the person released on bail will be brought before the court on demand.
Other conditions may be imposed as may be deemed appropriate. It may be interjected
in passing that in the event of delivering custody to the state by way of refusal of bail to
the accused or his surety the Court may set out other conditions for the benefit and
enjoyment of liberty by the accused.27

4.5.3 Liberty of Individual and Concept of Bail

The issue of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is integral to a
socially sensitised judicial process.28

Society has a vital interest in grant or refusal of bail because every criminal offence is
an offence against the state. The order must reflect perfect balance between the
conflicting interests, namely, sanctity of individual liberty and the interest of the
society.29 These are especially harrowing times for those arraigned before courts for
suspected crime. The judiciary has shown itself to be extremely tough, causing a lot of
heart burning among those habitually deviant. A vast majority of Indians welcome this,
because far too many criminals have been getting away with murder literally, because
of either poor police investigation or the capacity of the accused to buy up or intimidate
witnesses during a trial.

In a few states, ruling parties have been complicit in such misdeeds. On occasion, lack
of integrity among trial court judges has also been a problem.

27
D.C. Pandey, ―Criminal Law‖, XVI ASIL 452 et.seq. (1980) http://14.139.60.114:8080/jspui/
bitstream/123456789/673/6/The%20Concept%20and%20System%20of%20Bail.pdf
28
Justice V.R. Krishna Iyer in the Gudikanti Narasimhulu case, (1977), Gudikanti Narasimhulu and Ors. v.
Public Prosecutor,1978 AIR 429, 1978 SCR (2) 371.
29
Justice Dalveer Bhandari in S.S. Mhetre v. State of Maharashtra, (2010).
The Supreme Court and High Courts seem more than convinced now that unless
they intervened proactively, things could go out of control, and even the slender respect
for the law that we see often could totally snap. This is why the higher judiciary has
shown itself to be aggressive and has sent a decisive signal down its hierarchy that it
will not brook inconsistent rulings or unjustified lenience towards those suspected of or
charge sheeted for crime. The subordinate judiciary has been quick to respond with
some unusual rigour in dealing with criminal matters brought before it. Substantial
terms of imprisonment by trial courts and their ready endorsement by appellate courts
mark a distinct trend that shows the Indian judiciary in good light. A lenient sentence of
six months to a molester and a rash and negligent automobile driver who has killed
several on the road could be things of the past. This decisive change of stance towards
offenders should have positive fallout by way of deterring potential offenders. Victims
of crime should in particular be happy, especially those who have seen aggressors going
scot-free right before their eyes.30

There is, however, a flip side to the new phenomenon. There is an unexpressed feeling
among some that the judiciary is possibly too harsh and insensitive. The enormous
adulation that the judiciary has received from the media is cited by them as a distraction
that needs a cautious and balanced response while giving rulings in the future. Those
who plead for such a corrective are in a woefully small minority. They, however, cannot
be ignored if India is to be regarded as a civilised nation, one that is characterised by
mercy and poise. Any criticism of the judiciary is not exactly a popular line to plug at a
time when the whole nation is in a rage over successive scams and people in high places
making unbelievable quantities of money at the cost of the taxpayer. Somebody has to
bring to the notice of the judiciary that there is a school of thought in the country that
stands for moderation, even if it means undeserved lenience to those guilty or suspected
of crime. Something that is germane to the debate on
30
D.C. Pandey, edited by S.K. Verma. Right to Bail, Indian Law Institute.
perceived distortions in judicial approach to the current venality in the country is the
amount of discretion enjoyed by the courts while responding to petitions for bail. The
press is lapping up recent events with great relish to the point of being cruel to those
locked up as a result of stern judicial orders. Not a word of dissent or disapproval of
Court orders has been heard, something that would have revealed a certain logical
evaluation of such orders. This is a disturbing turn of events that needs introspection.

The current law on the subject of bail as incorporated in the Criminal Procedure Code,
gives courts a wide discretion in respect of those held in judicial custody or who
apprehend custody. A chronology of decisions since the beginning of the Republic in
1950 is revealing. The pendulum has swung from the lax and liberal approach to bail
requests to the somewhat harsh regimen now. This should send shivers down the spine
of many in public life who, until the other day, took the judiciary lightly to the point of
being furtively sarcastic and disrespectful. It is an entirely different matter that some
members of the judiciary themselves have given quarter to such irreverence towards
them. The former Chief Justice of India, S.H. Kapadia, has done enough to drive home
the message that he is no respecter of personalities and that he will come down heavily
on anyone straying from the path of virtue, even if he or she belongs to the judiciary.31

One of the earliest pronouncements on the philosophy that should guide judges while
disposing of bail applications was by Justice V.R. Krishna Iyer. His plea for a concern
for fundamental rights, especially the right to individual freedom, which needed to be
blended with protection of public safety, set the tone for judgments for several decades
to come.32

It was the accepted proposition that as long as an applicant for bail posed no threat to
the lives and property of others, he deserved a lot of consideration.
31
Aiyer and Mitter‘s, 5th edition, Law of Bails Practice & Procedure.
32
Asim Pandey, Law of Bail, Practice and Procedure, 2nd edition, 2015, Lexis, Nexis, p. 432.
Combined with this was the need for an undertaking that he or she would in no way
tinker with the processes of law, such as destruction of vital evidence that may not have
come to the notice of the police or prosecution or intimidation of those who were
expected to depose before the court during the trial. If this criterion was fulfilled to the
satisfaction of the court, it invariably granted bail. Of course, such an order came with a
few restraints on the accused, and a prescription that he or she should appear before the
police at prescribed intervals of time. Once the trial began, the accused was required to
attend every hearing without fail, unless there were convincing reasons for absence on a
particular day. Such a bail application was made invariably after the accused had been
arrested or charge-sheeted. The implication was that none could move the court on
mere apprehension of arrest. Then came the concept of
―anticipatory bail‖ in the form of Section 438 in the new code of 1973. The objective
was to take care of situations in which an individual feared being taken into custody by
the police in response to a frivolous complaint by a vengeful adversary. This was a
welcome relief to those who had suffered shame and ignominy at the hands of
unscrupulous members of society.33

Voluminous case law has been built around the theory making anticipatory bail a
weighty concept that courts could use with great care to protect innocent individuals.
Distressingly, however, some judges began diluting the benefit of Section 438 by
making it mandatory for helpless applicants to subject themselves to periodic
appearances at police stations or Courts. There was also a stipulation by some courts
that an anticipatory bail would cease the moment a charge sheet was filed in a case. This
possibly curtails the freedom of an individual, which was not contemplated by the
lawmakers.

The whole subject came up for a review by the Supreme Court in the Sibbia case34,
when the Court said that ―Judges have to decide cases as they come

33
Ibid.
34
Gurbaksh Singh Sibbia v. State of Punjab, 1980 AIR 1632; 1980 SCR.
before them, mindful of the need to keep passions and prejudices out of their decisions.
And it will be strange if. We cut down the discretion so wisely conferred, by devising a
formula which will confine the power to grant anticipatory bail within a straitjacket.‖

The Sibbia ruling implied that judges need not feel fettered by narrow concerns and that
they should interpret the law liberally so that no innocent person is denied what is due
in the form of an anticipatory bail. This was the line of argument by the defence counsel
in arguing for anticipatory bail of a Congressman, S.S. Mhetre35, who was accused of
involvement in a murder in 2009 and whose plea for anticipatory bail was turned down
by the Bombay High Court. In allowing the appeal, the Supreme Court (Justices
Dalveer Bhandari and K.P. Radhakrishnan) went largely by the Sibbia ruling and said
that any limitation on the validity of an anticipatory bail was not envisaged by the
legislature. At the same time, the Mhetre judgment laid down that the discretion vested
in the Court should be exercised with great care and circumspection.

All recent court rulings on bail generally should be viewed against the backdrop of the
Mhetre ruling. The Courts have enormous discretion in granting or refusing bail. It is
this discretion that possibly explains the varying standards applied in considering bail
applications. The point is whether differing perceptions have a deleterious impact on
justice. It is difficult to assess the impact because of the hugely varied
circumstances that surround each case. This is why we need a clinical study by legal
scholars on how bail applications are disposed of and whether discretion is exercised by
Courts under pressure from the media and a demanding public.

35
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 91.
4.5 FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF INDIA
RELATING TO PROTECTION OF LIBERTY

The Constitution of India is a written Constitution and has been made flexible, it has
the features of both the unitary and federal systems of government because under The
Constitution of India, the supreme head of the government is the president as in the
American Constitution, and yet the government is parliamentary as in Great Britain.
The Moti Lal Nehru Report of 1929 had made a demand for inclusion of a Bill of
Rights in the Constitution to be framed in the future.36

Prior to the Constitution of India, which came into force on 26 January, 1950, there was
no formal declaration of fundamental rights under the British rule but the government of
India Act, 1833 and thereafter the Government of India Act, 1915, contained some
rudiments in the nature of fundamental rights of the subjects.37

Fundamental rights are contained in several Articles 12-35 Part III of the Constitution
of India. In Golak Nath’s case38 it has been declared that fundamental rights are natural
rights in The Constitution itself. Bail was not inserted in the Indian Constitution as a
fundamental right, but by judicial activism it has been implicit in Article 21 as
component of personal liberty. The focus of judicial discretion in bail should always be
upon the aspects of personal liberty and equality of the individual provided under
Articles 14, 19 and 21 of the Constitution of India.39

4.5.1 Article 14 of the Constitution of India and Bail

The Constitution of India is the supreme law of the land. The Fundamental Rights are
available to all the ―Citizens‖ of the country but a few of them are

36
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 5.
37
Section 87 of the Act of 1833 and Section 96 of the Act of 1915.
38
L.C. Golaknath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 1643: 1967 (2) SCJ 486.
39
The Constitution of India, 1950.
 also available to ―persons‖. While Article 14, which guarantees equality before law or
the equal protection of laws within the territory of India, is applicable to
―person‖ which include the ―citizen‖ of the country and ―non-citizen‖. This
reflects that the Indian Legal system does not bring the nationality of an individual into
consideration while granting him/ her benefit of the provisions of bail. There is no
discrimination or differentiation in granting bail to a foreign national in India.40

4.5.2 Article 21 of the Constitution of India

Article 21 provides protection of life and personal liberty, the expression

‗personal liberty‘ occurring in Article 21 of the Constitution of India, has been given a
broad and liberal interpretation. Therefore, personal liberty would include the right to
socialise with members of the family and friends, subject, of course, to any valid
prison regulations. If any prison regulation or procedure, regulating the right to have
interviews with members of the family and friends, is arbitrary or unreasonable, it
would be liable to be struck down as invalid being violative of Articles 14 and 21.41

Article 21, along with Articles 19, 20 and 21, forms one group namely right to freedom.
This article guarantees the most essential of all rights, viz., the right to life and
personal liberty. It applies to all persons and not only to citizens as envisages in Article
19.42 Personal liberty, deprived when bail is refused, is too precious a value of our
Constitutional system, recognised under Article 21. After all, personal liberty of an
accused or convict is fundamental, and suffering lawful eclipse should be only in terms
of the procedure established by law. The last four words of Article 21 are the life of the
human rights.43 As was

40
Article 14 of the Constitution of India, 1950.
41
Francis Coaliemullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 (1981) 2 SCR 516: 1981 Cr
LJ 306.
42
A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27:1950 SCJ 174.
43
Babu Singh v. Sate of Uttar Pradesh, AIR 1978 SC 527 (529): (1978) 2SCR 177 (1978) 1 SCC 579:
1978 SCJ 135: 1978 Cr LJ 651.
held in Maneka Gandhi v. Union of India44, it is no longer permissible to contend that
the right to personal liberty can be curtailed even temporarily, by a procedure which is
not reasonable, fair and just when a statute itself provides for a just procedures, it must
be honoured. Conducting a search under Section 50, without intimating the suspect that
he has a right to be searched before a gazetted officer or a magistrate would be violative
of the reasonable, fair and just procedure, and the safeguard contained in Section 50
would be illusory.45

In cases arising under Article 21 of the Constitution, if it appears that a person is being
deprived of his life or has been deprived of his personal liberty, the burden rests on the
state to establish that the Constitutional validity of the impugned procedure is not
harash, cruel, or degrading. The burden does not lie on the petitioner to prove that the
procedure prescribed by impugned provision for taking life is unjust, unfair or
unreasonable. Therefore, as soon as it is shown that the act invades a right guaranteed
by Article 21, it is necessary to enquire whether the state has proved that the person has
been deprived of his life or person liberty according to a procedure established by law,
that is to say, by a procedure which is just, fair and reasonable.46

The right to life enshrined in Article 21, cannot be restricted to mere animal existence. It
means something much more than just physical survival. The right to life is not limited
only to protection of limb or faculty. It includes the right to live with human dignity and
all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter over the head, facilities for reading, writing and
expressing oneself in diverse forms, moving about freely and mixing and mingling with
fellow human beings.

44
AIR 1978 SC 597(1978) 1 SCC 248 (1978) 2 SCR 621: (1978) 2 SCJ 312.
45
State of Punjab v. Baldev Singh, (1999) 6 SCCC 172: AIR 1999 SC 2378: 1999 Cr LJ 3672.
46
Deena Alias Deen Dayal v. Union of India, AIR 1983 SC 1155: 1983 Cr LJ 1602 1983 (2) Crimes
770 (SC).