May 21, 2024

Lukmaan IAS

A Blog for IAS Examination



THE CONTEXT: The recent grant of interim bail to Delhi Chief Minister Arvind Kejriwal raises critical questions about the rights of political leaders to campaign and the broader implications for the criminal justice system. This case highlights the tension between the fundamental rights to political expression and the often-arbitrary application of draconian laws. The decision underscores the need for a fair and balanced approach to justice, especially for those opposing the ruling government.


  • Right to Campaign and Political Speech: The Chief Minister of a state and the convenor of a political party have the right to campaign for their party in a national election. This right is linked to the fundamental right to associate and express political speech, which is crucial for leading a party to success in elections.
  • Necessity of Interim Bail: The necessity of granting interim bail instead of liberty pending trial is questionable. It highlights the principle of “innocent until proven guilty” and the law favoring “bail, not jail” for undertrials. The conditions for granting bail pending trial often require the court to be convinced that no offense has been committed prima facie.
  • Draconian Legislation and Burden of Proof: This section addresses how draconian legislation for crimes considered “heinous” (e.g., narcotic drugs, economic offenses, terrorism) shifts the burden of proof to the accused. This often leads to the invocation of stringent laws like the UAPA or PMLA, making it difficult for the accused to obtain bail.
  • Judicial Reluctance and Higher Court Interventions: Lower courts are hesitant to grant bail because they fear being reversed by higher courts. This compels accused individuals to approach higher courts for bail, placing a significant burden on the Supreme Court to justify its time spent on bail pleas.
  • Political Identity and Targeted Prosecution: The political identity of the accused often influences decisions to prosecute or arrest. It questions the threshold of reasonableness required for the “reason to believe” that an offense has been committed, suggesting that prosecution is often targeted.
  • Right to Health and Fair Conditions of Detention: The right to health as a fundamental right is emphasized, particularly in detention conditions. The state must guarantee fair conditions of detention, including healthcare, citing the case of Father Stan Swamy and the Bombay High Court’s recognition of this right in granting bail to Varavara Rao.


  • Reforming Bail Laws: The “bail not jail” principle is often not adhered to, especially in cases involving political figures or high-profile individuals. The accused frequently bears the burden of proof for granting bail, contrary to the principle of the presumption of innocence. Law Commission of India (268th Report, 2017) recommended that bail be the norm and jail the exception, emphasizing the need for a more liberal approach to bail. Supreme Court Guidelines have repeatedly stressed that bail should not be denied unless there are compelling reasons, such as the risk of the accused absconding or tampering with evidence.
  • Ensuring Fair Investigation and Prosecution: Investigative agencies are often accused of being influenced by political considerations, leading to targeted prosecutions. There is a lack of transparency and accountability in the investigation process. Malimath Committee on Criminal Justice Reform (2003) suggested the establishment of an independent Directorate of Prosecution to ensure impartiality and accountability. The Second Administrative Reforms Commission (2007) recommended the separation of investigation and law and order functions to improve the quality of investigations.
  • Addressing Judicial Delays: The judicial process in India is notoriously slow, leading to prolonged pre-trial detention. Special courts often summarily reject bail applications, forcing the accused to approach higher courts. National Judicial Appointments Commission (NJAC) proposed increasing the number of judges and improving judicial infrastructure to expedite case disposal. The e-Committee of the Supreme Court advocates using technology to streamline court processes and reduce delays.
  • Protecting the Right to Health of Detainees: Instances have occurred where detainees have been denied proper medical care, leading to severe health consequences. The right to health is a fundamental right under the Indian Constitution. In the Varavara Rao Case, the Bombay High Court recognized the right to health as a fundamental right and granted bail on medical grounds. The National Human Rights Commission (NHRC) recommended regular health check-ups and timely medical treatment for prisoners.
  • Ensuring Judicial Independence: Lower courts are perceived as hesitant to grant bail because they fear being overturned by higher courts. Political identity often influences the decision to prosecute or grant bail. Judicial Accountability Bill Proposed measures to ensure the independence and accountability of the judiciary. Supreme Court of India emphasized the need for judicial officers to act fearlessly and independently without succumbing to external pressures.


Kejriwal’s bail underscores the urgent need to address systemic flaws in the criminal justice system, which often denies fundamental rights and liberties. The judiciary and legislative bodies are responsible for reforming this broken system and ensuring fair treatment for all, regardless of political affiliation. Until these issues are resolved, the fear of persecution will persist, undermining the principles of justice and equality.


Q. Can the Supreme Court Judgement (July 2018) settle the political tussle between the Lt. Governor and the elected government of Delhi? Examine.


Q. Discuss the legal and constitutional issues surrounding the grant of interim bail to political figures concerning the case of Delhi Chief Minister Arvind Kejriwal. How do these issues reflect broader challenges within the criminal justice system in India?


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