Stringency Versus Liberty: Special Statutes, The Twin Conditions, And The Limits Of Pre-Trial Detention In India
- IJLLR Journal
- May 3
- 1 min read
Srijan Puri, NMIMS, Kirit P. Mehta School of Law
I. The Basic Conflict
The basic tenet underlying the doctrine of criminal jurisprudence in India is very simple: “bail is the rule and jail is an exception.” This is because of the fact that Article 21 of the Constitution of India ensures that no one can be deprived of life or personal liberty without due process of law. The Supreme Court, ever since Maneka Gandhi v. Union of India, has consistently held that this procedure must itself be fair, just, and reasonable — not merely technically legal.
Nevertheless, Parliament has intentionally established a separate regime of criminal law for offenses, which Parliament deems serious enough to merit a special treatment. The provisions of NDPS Act, 1985; Prevention of Money Laundering Act, 2002; and the Unlawful Activities (Prevention) Act, 1967 impose the so-called twin condition for bail. This requirement reverses the presumption of innocence by making the accused establish his or her innocence prima facie and show that he or she shall not commit an offense upon release from custody. In other words, the accused is required to prove his or her innocence before being charged with an offense.
According to this paper, such rigidity in the law is neither random nor whimsical, but rather a carefully crafted legal requirement that has been generally upheld by the Supreme Court. However, it must also be said that such rigidity is not an absolute; rather, it is limited by the constitutional ceiling imposed by Article 21.
