Comic to outlandish: Arbitrary bail conditions imposed by Indian courts

High Courts in the country have over the years imposed bail conditions which range from comic to outlandish to grossly unfair, often raising questions if the law and the right to personal liberty is steered, not by the book, but by the caprices and fancies of concerned judges.

Queer case of Azam Khan

The Supreme Court recently lashed out at the Allahabad High Court while staying the bail conditions imposed by it on Samajwadi Party leader Azam Khan in a land grabbing case. The High Court had said that Khan will be granted regular bail if he fully cooperates with local revenue authorities in the measuring, walling and barb-wiring of the 13.842-hectare property in question.

The top court said the condition was “disproportionate” and had “no reasonable link with the conditions which are required to be imposed to secure the presence of the accused to ensure that the fairness of trial is not impeded.”

A vacation bench of Justices DY Chandrachud and Bela Trivedi also ruled that the condition had prima facie “exceeded the settled parameters” for grant of bail.

Judicial stamp on sexual abuse?

Another bail condition which was scrapped by the apex court along with a scathing rejoinder was the Madhya Pradesh High Court’s order to a suspected molester to visit the victim and get her to tie a ‘rakhi’ on him on Raksha Bandhan day. The court had also asked the 26-year-old man to give the woman ₹10,000 as Raksha Bandhan gift, a present brothers make to their sisters on the festive occasion, and give ₹5,000 to the survivor’s son to purchase clothes and sweets.

Turning down the High Court’s order in March 2021, a bench of Supreme Court justices AM Khanwilkar and S Ravindra Bhat said that “using rakhi tying as a condition for bail transforms a molester into a brother by a judicial mandate.” The apex court said that the law of bail does not allow a situation where a victim can be forced to accept such a serious offence with such trivial gestures.

The top court also barred judges from giving bail to those accused of sexual offence under the conditions of apologizing to their victims or performing community services.

A similar bail condition was imposed by a local court in Madhubani district in Bihar in September 2021, in which a person accused of attempted rape was asked by the court to wash and iron clothes of all the women in the village, free of cost, for six months. The Additional Session Judge-1 of Jhanjharpur had asked the accused to obtain a certificate of completion from the village headman or any public servant of the village and produce the same in the court.

‘Penance’ by social media abstinence, Quran, PM-Cares

In yet another arbitrary bail condition, the Allahabad High Court in 2020, had granted bail to a person accused in a sedition case on the condition that he does not use social media till his trial is completed.

In 2020, while granting bail to former BJP MP Som Marandi and five others, the Jharkhand High Court asked them to contribute ₹35,000 each to the PM-CARES fund and download the Aarogya Setu app. The contact tracing app, launched in the thick of the COVID-19 pandemic, despite of mopping up over 100 million downloads, has raised privacy concerns and fears about the government accessing personal information of citizens.

Marandi and the five others were seeking bail in a case of blocking railway tracks during an agitation in 2012.

In July 2019, judicial magistrate Manish Kumar Singh in Jharkhand granted bail to Richa Bharati, who was charged with writing offensive posts against Muslims on social media, on the condition that she would distribute five copies of the Quran to different libraries. The court later withdrew the order after facing flak from several quarters including the Ranchi District Bar Association which protested against the order.

In 2016, one of the most-debated bail condition was the one imposed by the Delhi High Court on then JNUSU president Kanhaiya Kumar, who was released on the condition that he would not “participate actively or passively in any activity which may be termed as anti-national.”

“Apart from that, as president of JNU Students Union, he will make all efforts within his power to control anti-national activities in the campus,” a bench of justice Pratibha Rani had said.

The apex court, in 2009, had said that it would take stock of “irrelevant” bail conditions imposed by trial and high courts, while turning down a Madras High Court bail condition to two accused. The high court had asked the accused to perform “community service” at an orphanage for three hours every day for a week. The top court, however, abstained from questioning the bail condition of the high court in which the accused were asked to hoist the National Flag in front of their houses every day for a week.

Are bail conditions mandatory?

While the Constitution allows an accused to claim bail as a matter of right in bailable offences, the Supreme Court in 2009 (Rasik Lal Vs Kishore) ruled that bail was “an absolute and indefeasible right” of a person and “no discretion can be exercised in” bailable offences.

The top court also said that a court cannot “impose any conditions except to demand security.”

Bail is discretionary in non-bailable offences and the judge can impose conditions. The Supreme Court (in Rao Harnairain Singh Vs State -1957), however, has ruled that such discretion cannot be arbitrarily exercised and is subject to restrictions delineated in Section 437 (1) of CrPC and in view of the enormity of charge, nature of accusation, severity of punishment, possibility of accused absconding if released on bail and possibility of evidence being tampered among others.

The Supreme Court has instructed lower courts to strike a balance between personal liberty and the right of police to probe while considering bail petitions and imposing conditions.