Introduction: Beyond the General Rule
In most cases, bail is a contested battlefield. An accused charged with a serious offence—especially one punishable with death or life imprisonment—faces a formidable obstacle: the presumption against bail. Yet the Indian legal system has always harbored an exception to this rule. It acknowledges that certain categories of offenders present unique circumstances that justice must accommodate. This article examines how courts navigate the intersection of criminal procedure, constitutional protections, and human dignity when women, pregnant individuals, and the medically infirm come before them seeking release on bail.
The
framework lies in two statutory provisions—Section 437(1) of the Code of
Criminal Procedure, 1973 (CrPC) and its successor, Section 480(1) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—both of which contain a
deceptively simple proviso: bail may be granted to those “under the age of
sixteen years or is a woman or is sick or infirm.” Yet this simplicity masks a
profound and evolving jurisprudence about protection, equality, and
constitutional rights.
Part 1: Women
Offenders and the Paradox of Protective Discrimination
The Statutory Scaffold
Section 437(1) of
the CrPC has long contained a proviso that functions as a legal oddity in the
age of gender equality. It explicitly permits courts to grant bail to women
even in cases where the general rule would forbid it—offences punishable with
death or life imprisonment. The BNSS retains this language verbatim in Section
480(1), signaling legislative continuity rather than reform.
On its surface,
the provision appears to favor women. Yet this appearance belies a deeper
question: Is this a protection or a relic of paternalism?
Constitutional
Foundation: Article 15(3) and “Protective Discrimination”
The
judiciary has anchored this provision in Article 15(3) of the Indian
Constitution, which permits the State to make special provisions for women and
children. This is “protective discrimination”—discrimination sanctioned by the
Constitution itself to remedy historical vulnerabilities.
The
reasoning is multifaceted. Women, the law assumes, face unique hardships in
incarceration. Female undertrials often carry disproportionate family
burdens—childcare, elderly care—and pose, statistically, a lower flight risk.
They are presumed to face greater risks in a custodial environment. As such,
the proviso was conceived as a humanitarian gateway, allowing judicial
discretion to release women while maintaining societal safety.
But
here lies the tension.
The Equality
Paradox: When Gender Becomes a Liability Rather Than a Shield
The
principle of equality under Article 14 demands that individuals be treated
alike unless there are intelligible differentia justifying unequal treatment.
The modern criticism of the proviso challenges whether gender, in itself,
constitutes such a differentia when a woman actively participates in heinous
crimes.
Over
the past two decades, Indian courts—particularly the Supreme Court—have
increasingly scrutinized the proviso’s application. The judiciary has
recognized a dissonance: women now participate in complex, organized
crimes—white-collar fraud, terrorism, money laundering, and drug
trafficking—not as passive accomplices but as architects. Can these individuals
claim the same protective umbrella intended for vulnerable women?
The
Supreme Court’s answer has been crystalline: No.
The “Educated
Woman” Exception: Saumya Chaurasia v. Directorate of Enforcement (2023)
In
a landmark judgment that recalibrated the application of the gender proviso,
the Supreme Court denied bail to Saumya Chaurasia, a senior Indian Revenue
Service (IRS) officer accused in a money laundering case. The Court’s
observation was unmistakable: “educated and well-placed women” who actively
participate in commercial crimes cannot claim the same immunities as the “poor,
illiterate, or vulnerable” women the legislature intended to protect.
This
judgment represents a watershed moment. The Court did not abandon the proviso;
rather, it reinterpreted it through a lens of substantive equality. The benefit
of the proviso, the Court implied, is not an automatic passport to bail but a
discretionary tool calibrated to the real vulnerability of the accused.
The
implication is stark: a woman IAS officer orchestrating an embezzlement scheme
stands on different footing than a woman domestic worker accused of theft to
feed her children.
The
Discretionary Nature: Prahlad Singh Bhati v. NCT of Delhi (2001)
In
an earlier but equally significant judgment, the Supreme Court clarified that
the proviso does not create a right to bail but merely empowers the
Magistrate to exercise discretion. The Court held that while a Magistrate may
grant bail to a woman even in a life imprisonment case, this discretion must be
exercised “judicially,” with rigorous regard to the gravity of the offence, the
nature of the accusation, and the woman’s role therein.
The
distinction between power and duty is critical. The Magistrate can grant bail;
the Magistrate need not do so merely because the accused is a woman.
“Role” as the
Determinative Factor
Courts
have increasingly focused on the woman’s role in the crime. A woman convicted
of murder as a passive accomplice—say, as a bystander who remained silent—may
receive bail more readily than a woman who orchestrated the conspiracy.
Similarly, in terror cases under the UAPA, courts distinguish between women who
merely harbored suspects and women who actively recruited or planned
operations.
This
role-based analysis represents a more nuanced form of judicial reasoning. It
respects both the protective intent of the proviso and the constitutional
demand for equality. It says: protection is not based on gender alone but on
the convergence of gender with vulnerability and culpability.
BNSS and the “Non-Reform”
Reform
The BNSS
retains Section 480 with identical language to Section 437. There is no shift
toward “gender neutrality”—men remain excluded from this beneficial proviso.
Yet the BNSS introduces a parallel, gender-neutral mechanism: Section 479.
Section
479 mandates automatic release for first-time offenders who have completed
one-third of their maximum sentence (compared to one-half under the CrPC’s
Section 436A). This seemingly technical change has profound implications. Many
women undertrials are first-time offenders. Section 479 offers them a statutory
entitlement independent of judicial discretion and gender.
This
suggests a legislative philosophy: rather than rely on a gendered proviso whose
application grows contentious, provide gender-neutral pathways that
incidentally benefit vulnerable groups.
Part 2: Pregnant
Women and Nursing Mothers—When Two Lives Are One
The Invisible Category
Neither Section
437 of the CrPC nor Section 480 of the BNSS explicitly mentions pregnant women
or nursing mothers. Yet pregnancy may fall under two categories: “woman” and
“sick or infirm.” This ambiguity has forced courts to venture beyond the
statutory text and into constitutional territory.
The judicial
approach has been transformative. Courts now treat pregnancy as a
“super-category”—a condition that engages the rights of two distinct entities:
the mother and the unborn child. Both are constitutionally protected; neither
is justiciable as a criminal actor.
Article 21 and the
Right to Maternity
The
Supreme Court has increasingly grounded the bail of pregnant women in Article
21 of the Constitution—the right to life and personal liberty. The reasoning is
elegant: incarceration of a pregnant woman poses a threat not merely to her
liberty but to the life and dignity of an unborn child who is innocent of any
accusation.
This
constitutional move reframes the bail analysis. It is no longer a question of
whether a woman deserves mercy; it is whether the State can imprison an
innocent human being—the foetus—as collateral to the mother’s prosecution.
The Landmark R.D.
Upadhyay v. State of Andhra Pradesh (2007) Guidelines
In
a judgment that established the jurisprudential foundation for bail in
pregnancy cases, the Supreme Court issued comprehensive guidelines. The Court
held that “childbirth in prison should be avoided whenever possible.” It
mandated that “measures of temporary release or parole… should be made to
enable an expectant prisoner to have her delivery outside prison.”
These
guidelines represented a recognition that the Constitution’s protection of
motherhood—embedded in Article 21 and Article 15(3)—extends to the dignity of
childbirth and early nursing. The Court essentially held that prison
hospitality, no matter how well-intentioned, cannot substitute for the natural
environment a pregnant woman needs.
The
decision was not merely merciful; it was constitutionally anchored.
Contemporary
Application: The Safoora Zargar Case (2020)
The
Delhi High Court’s grant of bail to Safoora Zargar in 2020 demonstrated the
real-world force of these principles. Zargar, a activist accused under the
draconian Unlawful Activities (Prevention) Act (UAPA), faced a stringent
statutory bar on bail—Section 43D(5) of the UAPA, which effectively denies bail
in terror cases unless the prosecution’s case is “prima facie false.”
Yet
the Delhi High Court granted bail, citing pregnancy. The Court recognized that
the “rigors of prison pose a risk to the pregnancy” and that constitutional
protections could not be subordinated to the severity of the accusation. The
judgment was particularly bold because it overrode not merely judicial
discretion but a statutory bar.
The Medical Imperative: Recent High Court Precedent in the case of Surbhi v. State of Maharashtra. 2024 SCC OnLine Bom 3663.
In this case, Bombay High Court in an NDPS case further refined the
framework. The Court granted temporary bail to a pregnant woman accused of drug
trafficking, noting that the health of the foetus was a paramount
constitutional concern that transcended the offense’s gravity. The Court
explicitly invoked the R.D. Upadhyay guidelines and ordered that bail be
conditional on ensuring access to prenatal care.
These
cases illustrate a clear jurisprudential trajectory: pregnancy is not merely a
personal circumstance but a constitutional event that recalibrates the entire
bail calculus.
The Nursing
Mother: An Emerging Frontier
While
less developed than the pregnant woman jurisprudence, courts have begun
extending similar protections to nursing mothers. The rationale mirrors that
for pregnancy: an innocent infant cannot be imprisoned or deprived of maternal
care as punishment for the mother’s alleged crime. Article 21’s protection of
childhood dignity and the child’s right to sustenance create a compelling case
for bail or temporary release.
Part 3: The
Elderly and Medically Infirm—The Exceptionally High Threshold
Defining “Sick or Infirm”
The proviso’s
reference to “sick or infirm” might suggest a generous framework for medical
bail. In practice, the Indian judiciary has erected an exceptionally high
threshold. Being elderly or chronically ill does not automatically qualify.
“Infirmity” in
judicial parlance refers to a physical or mental debility so severe that the
person cannot manage their daily affairs—not merely discomfort or
inconvenience. “Sickness” implies a condition that cannot be treated within the
jail hospital or through referral to a government healthcare facility.
The distinction
is crucial. A 75-year-old accused of a minor theft might readily obtain bail on
health grounds. The same person accused of organized crime faces rigorous
scrutiny, with courts skeptical that age and infirmity override the severity of
the offense and flight risk.
The Burden of
Proof: Medical Evidence Standards
The
burden rests squarely on the accused. They must demonstrate, through credible
medical evidence, that their condition is genuinely incarceration-incompatible.
But what constitutes “credible” evidence?
This
is where the framework becomes stringent. Indian courts have grown increasingly
skeptical of private medical certificates. The gold standard requires formation
of a Medical Board, typically drawn from AIIMS or a government teaching
hospital, to conduct an independent evaluation. Private practitioners, however
eminent, carry the taint of potential bias.
The
decisive question courts ask is deceptively simple: “Can this ailment be
treated within the jail premises or through referral to a government hospital?”
If the answer is yes, bail is typically denied. The test prioritizes not
whether treatment is optimal but whether treatment is possible within
state facilities.
Satyendar Kumar Jain v. Directorate of Enforcement (2024): Medical Bail, But a Narrow Gateway
The litigation around Satyendar Kumar Jain, a former Delhi minister accused under the Prevention of Money Laundering Act (PMLA), offers an important illustration of how strictly Indian courts scrutinize medical bail claims in economic offences. Jain initially sought bail on medical grounds, citing serious health issues including drastic weight loss, spine problems requiring surgery, and associated complications; at one stage, sleep apnea was also mentioned in the broader public discourse, though it was not the central medical foundation of the Supreme Court’s orders.
In May 2023, the Supreme Court granted him six weeks’ interim bail on medical grounds, expressly relying on medical records from a government super-speciality institution (G.B. Pant Hospital) and permitting treatment in a hospital of his choice, while imposing strict conditions against influencing witnesses or speaking to the media. This interim bail was then extended multiple times as he underwent lumbar spine surgery and rehabilitation, though the Enforcement Directorate consistently opposed extensions and urged fresh evaluation by AIIMS and other independent government medical boards.
In March 2024, however, the Supreme Court directed Jain to surrender, holding that he could no longer continue indefinitely on medical bail and that the ordinary PMLA bail framework—particularly the stringent twin conditions under Section 45—would apply going forward. The Court underlined that prolonged interim medical bail cannot be converted into de facto regular bail, and that the right to speedy trial and the application of Section 436A CrPC principles must be balanced against the gravity of money laundering allegations.
Taken together with Delhi High Court
orders in the same matter, the Jain litigation reflects an emerging judicial
position:
· First, medical bail in serious economic offences is an exceptional relief, not a routine consequence of illness.
· Second, courts give primacy to independent, credible medical evidence, often preferring government/board reports over partisan or one-sided medical certificates, and are wary of perceived misuse of hospitalisation to secure or prolong release.
· Third, relatively common or manageable conditions—such as controlled sleep-related or lifestyle ailments—are not, by themselves, sufficient to justify bail if adequate treatment is available within the jail system or through supervised referral to government hospitals.
Yet
judicial rigidity has not been absolute. In a notable relief, the Supreme Court
granted interim medical bail to Mahesh Raut, a Bhima Koregaon accused facing
stringent prosecution under the UAPA. Raut, an elderly man with serious health
conditions, required specialized treatment unavailable in custody.
The
Court’s reasoning was significant: Article 21 of the Constitution overrides
even statutory bars—such as Section 43D(5) of the UAPA—when the prisoner’s
health is severely compromised. The Court granted bail for six weeks,
recognizing that in exceptional circumstances, the right to life supersedes the
gravity of the accusation.
The
judgment reinforces a critical principle: rigorous scrutiny is not absolute
rejection. When health conditions are genuinely grave and incarceration poses a
mortal threat, courts will grant bail even in terror cases.
Naresh Goyal
Case (2023): Advanced Age as Exceptional
Circumstance
The bombay High Court’s grant of interim bail to Naresh Goyal, a 72-year-old cancer patient,
further illustrates the threshold for medical bail. The Court ruled that
advanced age combined with a life-threatening disease—advanced cancer, in
Goyal’s case—constitutes an “exceptional circumstance” where custody itself
directly endangers life.
The
decision acknowledges that while age alone is insufficient, and serious illness
alone is insufficient, their combination, particularly with terminal
diagnoses, can justify bail. The test is not whether the accused will recover
(they may not) but whether their continued incarceration serves any penological
purpose while posing mortal danger.
The “Treatment
in Custody” Test: The Framework’s Core
The
bedrock principle remains: courts will grant medical bail only if the accused
demonstrates that specialized treatment, essential for their survival or health
preservation, is unavailable within state facilities or jail hospitals. General
ailments treatable by government facilities do not meet this threshold.
This
framework reflects a judicial philosophy: medical bail is not a reward for age
or illness but an exceptional accommodation when custody becomes cruel and
inhuman. It respects both the rule of law (courts do not second-guess
imprisonment lightly) and human dignity (courts do not permit torture by
incarceration).
Comparative
Framework: CrPC vs. BNSS
|
Feature |
CrPC Section 437 |
BNSS Section 480 |
Key Judicial Qualification |
|
Women |
Proviso
allows bail even in non-bailable/life imprisonment cases. |
Proviso
Retained with identical language. |
Benefit
denied if woman is educated, well-placed, and active participant in serious
crime (Saumya Chaurasia). Discretionary, not mandatory. |
|
Pregnant Women |
Implicit
inclusion under “woman” and “sick/infirm.” |
Implicit
inclusion retained. |
Bail
strongly favored on constitutional grounds (Article 21). Childbirth outside
prison is the norm (R.D. Upadhyay). UAPA bar can be overridden (Safoora
Zargar). |
|
Sick/Infirm |
Proviso
allows bail if condition is genuine. |
Proviso
Retained. |
Exceptionally
high threshold. Must be life-threatening or untreatable in jail (Satyendar
Jain). Article 21 can override statutory bars in grave health situations
(Mahesh Raut). |
|
First-Time Offenders |
Section
436A: Release after serving 1/2 of maximum sentence. |
Section
479: Release after serving 1/3 of maximum sentence. |
Gender-neutral
provision. Significantly benefits women and elderly first-timers, offering
statutory entitlement independent of judicial discretion. |
The Evolving
Jurisprudence: Themes and Tensions
1. From Status to Substance
The trajectory
of bail jurisprudence for special categories shows a shift from status-based
reasoning (woman = bail) to substantive reasoning (woman + vulnerable
circumstance + culpability). Courts now ask not merely “is the accused a
woman?” but “is this woman the kind the law intended to protect?”
This represents
a maturation of constitutional thinking. It harmonizes protective provisions
with equality principles by tying protection to genuine vulnerability rather
than category membership alone.
2. The Primacy of Article 21
Across all
three categories—women, pregnant individuals, and the medically infirm—the
Supreme Court increasingly grounds its reasoning in Article 21. The right to
life becomes not merely a shield against execution but a generative principle
that imposes positive obligations on the State to preserve human dignity even
in the criminal process.
This represents
a constitutionalization of bail jurisprudence. Bail is no longer merely a
procedural accommodation but a requirement of constitutional dignity.
3. The Gender-Neutral
Pivot in BNSS
While
BNSS retains gendered provisos, its introduction of Section 479 (gender-neutral
release for first-time offenders) suggests legislative wisdom: rather than rely
on discretionary provisions vulnerable to misapplication, create entitlements
that incidentally benefit vulnerable groups.
This
approach respects both formal equality (no express gender distinction) and
substantive equality (benefits accrue to those most likely to be vulnerable).
4. Medical Bail: Mercy
Within Rigor
The
framework for medical bail reveals a judiciary committed to preventing
incarceration from becoming torture while respecting the seriousness of
criminal prosecution. The exceptionally high threshold protects against
frivolous claims while the overriding force of Article 21 ensures that genuine
cases of mortal danger are not ignored.
Practical
Implications for Practitioners
For
advocates representing women, pregnant, or medically infirm clients, several
takeaways emerge:
1.
Gender is an opening, not a
guarantee. In serious crimes, courts scrutinize the
accused’s education, employment, and role. Highlighting
vulnerability—dependents, lack of resources, vulnerability to jail violence—is
crucial.
2.
Pregnancy is a
constitutional trump card, but it requires medical documentation. Courts will grant bail (or temporary bail) to pregnant women facing
even UAPA charges. Medical certificates from reputable hospitals are essential.
3.
Medical bail requires
government medical board evaluation. Private
certificates, however prestigious the practitioner, are insufficient. Engage
government medical boards early. The test is not whether jail is unpleasant but
whether specialized treatment is unavailable within state facilities.
4.
Section 479 of BNSS offers a
statutory advantage for first-time offenders. If
your client has completed one-third of their maximum sentence, bail becomes
automatic, sidestepping judicial discretion.
5.
Article 21 reasoning is
powerful in special categories. Invoke
constitutional protection of dignity, motherhood, and life whenever
applicability. Courts are increasingly responsive to this framing.
Conclusion:
Justice Tempered with Humanity
The
framework governing bail for women, pregnant individuals, and the medically
infirm reflects a judiciary attempting to balance competing imperatives: the
rule of law, public safety, and human dignity. It is not a framework of
automatic leniency but of calibrated discretion, where circumstance,
vulnerability, and culpability interact to shape outcomes.
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