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 constitutionally sanctioned classification inserted separately due to the over anxiety of the draftsmen to make matters clear beyond doubt. In doing so justice Krishna Iyer changed the understanding of affirmative action. It is a constitutionally legitimate means of achieving substantial equality rather than mere deviation from the principal of equal treatment to unequals”, the CJI highlighted.

On Justice Iyer's views in Maneka Gandhi, the CJI highlighted that Justice Iyer observed that personal liberty is central to the worth of human life, and that Article 21 must be interpreted to include the right to live with dignity, freedom, and full development. The CJI said this interpretation led to Article 21 being expanded to include the right to potable water, food, shelter, pollution-free environment, medical treatment and more.

Justice Iyer's concern for prisoners' rights was also highlighted. The CJI said, “He underscored State's duty to secure just and humane conditions for the prisoners. In several landmark decisions he not only exposed the deplorable conditions of incarceration but also offered constructive and suggestions for present reforms, issuing directions to ensure that even those behind bars lived with dignity and compassion within the framework of the existing law and the constitutional framework.”

In Sunil Batra v. Delhi Administration, Justice Iyer dealt with the harassment of a death row prisoner and held that “basic prisoner decency is an aspect of criminal justice.”

Justice Iyer also addressed gender discrimination in the case of CB Muthamma v. Union of India involving the Indian Foreign Services. His judgment led to the removal of discriminatory practices and promoted gender parity in public employment.

CJI Gavai highlighted that by 1980, Justice Iyer and Justice Bhagwati took the court in a new direction by evolving a human rights-centric jurisprudence. The traditional locus standi was abandoned in favour of Public Interest Litigation, including the court's epistolary jurisdiction.

The CJI said this innovation helped disadvantaged sections of society access justice and brought the court worldwide prominence. “This innovative weapon initially employed by public spirited citizens to file PILs on behalf of the sections of the society that were unable to do so on their own on account of economic and social constraints is still bringing about unheard of improvements in people's daily life today”, the CJI said.

Quoting Justice Iyer, he said, “When the history of Indian judiciary comes to be written, PIL will be glorified as a globalist ally of the little Indian.”

In one such PIL, Justice Iyer treated a prisoner's letter as a writ petition and remarked, “Freedom behind bars is part of our constitutional tryst. If wars are too important to be left to the generals, surely prisoners' rights are too precious to be left to the jailers.”

The CJI pointed out that Justice Iyer viewed fundamental rights as freedoms not just to acquire and hold wealth, but freedom from poverty and misery. His unique values, methods, and style of judgment-writing continue to be studied and admired. He provided relief to marginalised litigants who were otherwise denied justice due to technicalities.

CJI Gavai said that Justice Iyer's jurisprudence reshaped the judiciary's role and moved it beyond legalistic approach to a dynamic socio-economic revolution. Through PILs and expansive constitutional interpretation, Justice Iyer demonstrated how the gap between Directive Principles and Fundamental Rights could be bridged.

“Justice Iyer's influence stems from his unique values, unconventional approach, innovative methods and distinctive language and the style of his judgements all of which continue to be studied and admired even today. Justice Iyer's jurisprudence fundamentally shaped the judiciary, the fundamental rights, and the Directive Principles of State Policy. He moved the courts beyond the more legalistic interpretation to a dynamic socio-economic revolution. He demonstrated how judicial activism particularly through the PIL could be a powerful tool to bring the gap between constitutional ideals of Directive Principles of State Policies and the lived realities of fundamental rights, making justice accessible and meaningful for all”, the CJI said.

He added, “Justice Iyer's approach teaches us that constitutional interpretation requires a nuanced understanding of the aspirations of the people, the socio-economic realities, and the transformative goals embedded in our Constitution.”

CJI Gavai concluded by calling Justice Iyer his guiding star, role model and lighthouse. “In my journey as a judge for the last 22 years I have attempted to follow Justice Krishna Iyer's legacy towards commitment of social and economic justice. I don't know how far successful I have been,” he said.

“Every time a bench emphasizes substantive justice over technicalities, every time a judgement expands the protective umbrella of the fundamental rights for the vulnerable, every time the court exercises powers to uphold human dignity and social equality, Justice Krishna Iyer's legacy is not just honoured but actually lived,” he said.

Former Kerala High Court Judge Justice K Balakrishnan Nair, the President of the SKS Foundation of Law & Justice, delivered the Welcome Speech. The Presidential address was delivered by  Chief Justice of the Kerala High Court Nitin Jamdar.

Justice Devan Ramachandran of the Kerala High Court delivered the commemoration address. Adv. Sanand Ramakrishnan, Secretary, SKS Foundation for Law and Justice, delivered the vote of thanks.

The video of the event can be watched here :