Understanding Liberty: A Student’s Guide to BNSS Bail Jurisprudence

 The concept of bail represents the most significant intersection between criminal procedure and constitutional law. In the Indian legal landscape, this field has undergone a profound transformation with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This guide serves as a curriculum roadmap for students to navigate the shift from a discretion-heavy past toward a future defined by the "Constitutionalization of Bail."

1. The Bedrock of Freedom: Article 21 and the Constitution

Every statutory provision regarding bail must be interpreted through the lens of Article 21 of the Indian Constitution. This article is not merely a legal clause but the foundation upon which the entire architecture of personal liberty is constructed.

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Article 21 Reclaims the Centre: The Supreme Court’s 2026 Bail Reset

 The Supreme Court’s early 2026 bail docket shows a clear constitutional rebalancing: prolonged incarceration, stagnant trials, and disproportionate bail conditions are being tested directly against Article 21, even where special statutes impose severe restraints. At the same time, the Court has not diluted every statutory embargo; it has remained notably strict in commercial-quantity NDPS cases and where procedural abuse or criminal antecedents are evident.

The liberty trend

In Syed Iftikhar Andrabi v. National Investigation Agency, decided on 18 May 2026, the Supreme Court granted bail after more than five years of custody in a UAPA/NDPS-linked prosecution and reaffirmed that the constitutional guarantee of personal liberty cannot be reduced by reading K.A. Najeeb as a narrow exception. The judgment is best understood as a reaffirmation that where trial is unlikely to conclude within a reasonable time, the rigours of Section 43D(5) UAPA must yield to Article 21.

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Handcuffs Under BNSS, Constitutional Limits Under Article 21: Reading Section 43(3) With Vihaan Kumar

Section 43(3) BNSS: What the law now provides

The Bharatiya Nagarik Suraksha Sanhita, 2023 has introduced an express statutory provision on handcuffing. Section 43(3) states that a police officer may, having regard to the nature and gravity of the offence, use handcuffs while making arrest or while producing the arrested person before the court in specified categories of cases.

These categories include habitual or repeat offenders, persons who have escaped from custody, and those accused of serious offences such as organised crime, terrorist acts, drug-related offences, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, and offences against the State. Therefore, unlike the old CrPC, BNSS now expressly recognizes a statutory power to handcuff in identified situations.

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A Shield or a Weapon? 5 Surprising Takeaways from the Supreme Court's Landmark Ruling Shivangi Bansal vs. Sahib Bansal case on s 498A of IPC

 

Introduction: The Double-Edged Sword of Justice

Section 498A of the Indian Penal Code was forged with a clear and vital purpose: to serve as a legal shield for women facing cruelty in their matrimonial homes. It is a potent law, making such abuse a cognizable, non-bailable offense to ensure swift, decisive action for victims in genuine peril. Police can arrest without a warrant, and bail is difficult to secure—features designed for immediate protection.

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PMLA and NDPS 2025: 4 Supreme Court judgments Balancing State Power and Civil Liberties

 

Introduction: The Tightrope Walk Between Security and Liberty

The state's need to combat complex crimes like money laundering and narcotics trafficking often leads to the creation of powerful and stringent laws, such as the Prevention of Money Laundering Act (PMLA) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act. These laws grant investigative agencies extensive powers, creating an inherent tension with a citizen's fundamental constitutional right to liberty. In 2025, the Supreme Court of India delivered several landmark rulings that recalibrated this delicate balance. This article explores the four most impactful and counter-intuitive takeaways from these judicial pronouncements.

1. The Bail Paradox: When a "Double Lock" Meets Indefinite Delay

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Defamation under Indian law

 Defamation under Indian law is comprehensively defined and regulated through both civil and criminal provisions, protecting individuals' reputations while balancing freedom of expression.

Legal Definition

Section 499 of the Indian Penal Code defines defamation as: "Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."

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LLM Notes: Ankita Kailash Khandelwal & Ors. v. State of Maharashtra & Ors: A Case Study on Academic Pursuits and Fundamental Rights

 This article provides a case study analysis of Ankita Kailash Khandelwal & Ors. v. State of Maharashtra & Ors., focusing on the critical legal positions established regarding the rights of accused individuals to pursue academic activities under Article 21 of the Indian Constitution. The case also examines the extent of statutory powers of educational institutions to issue suspension orders.

Background

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Supreme Court: The right of anticipatory bail is not a part of Article 21 of the Constitution of India

 Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "...except according to a procedure prescribed by law". In State of M.P. v. Ram Kishna Balothia [State of M.P. v. Ram Kishna Balothia,   MANU/SC/0239/1995 : 1995:INSC:99 : (1995) 3 SCC 221: 1995 SCC (Cri) 439], the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) {Para 71}

7. ... We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Code of Criminal Procedure of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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LLM Notes: Significance of Article 21 of Indian constitution in Promoting Human Rights

 Article 21 of the Indian Constitution, which states, "No person shall be deprived of his life or personal liberty except according to procedure established by law," is a cornerstone for the protection and promotion of human rights in India. It guarantees two fundamental rights: the right to life and the right to personal liberty. Over time, the judiciary has interpreted Article 21 expansively, transforming it into a powerful tool for safeguarding human dignity and promoting various facets of human rights.

Key Contributions of Article 21 to Human Rights

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Supreme Court: Right To Shelter A Facet Of Article 21; State Must Satisfy Why Entire Property Needs To Be Demolished

 VII. RIGHT TO SHELTER

76. There is another angle to this problem. It is not only the Accused who lives in such property or owns such property. If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged Accused person? What is their mistake if their relative is arrayed as an Accused in some complaint or F.I.R.? As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution.

78. The right to shelter is one of the facets of Article 21. Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional.

81. The position is disputed by the learned Counsels appearing on behalf of the Petitioners/applicants. It is stated that the chain of events clearly depicts that the demolition of the houses was an immediate reflection of the persons being implicated in crimes. It was submitted that the time gap between the person being named as an Accused and demolition of his property/properties made it apparent that the punishment of demolition was inflicted by the executive on such person being arrayed as an Accused. It was also submitted that in case of demolition of the property of an alleged Accused, it is difficult to believe that only a single construction belonging to an Accused is unauthorized construction, whereas all other structures in the vicinity are legal and authorized as per local laws.

82. Though the learned SG may be right in submitting that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the Accused persons, however, when a particular structure is chosen all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity are not even being touched, mala fide may loom large. In such cases, where the authorities indulge into arbitrary pick and choose of the structures and it is established that soon before initiation of such an action an occupant of the structure was found to be involved in a criminal case, a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure but an action of penalizing the Accused without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalize a person Accused by demolishing the structure.

83. While considering the issue with regard to the demolition of the houses which are required to be demolished for breach of the local laws, we find that the principle of the Rule of law needs to be considered even in the municipal laws. There may be certain unauthorized constructions which could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed. In such cases, the extreme step of demolition of the property/house property would, in our view, be disproportionate.

84. As already discussed herein above, the right to shelter is one of the facets of Article 21 of the Constitution. If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available. 

86. It is also to be noted that the construction of a house has an aspect of socio-economic rights. For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one's head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

Read full Judgment here: Click here.

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Supreme Court: Clean Acquittal Of Accused After Long Undertrial Custody May Give Rise To Claim For Compensation

  There are cases where clean acquittal is granted by the criminal courts to the Accused after very long incarceration as an under trial. When we say clean acquittal, we are excluding the cases where the witnesses have turned hostile or there is a bona fide defective investigation. In such cases of clean acquittal, crucial years in the life of the Accused are lost. In a given case, it may amount to violation of rights of the Accused Under Article 21 of the Constitution which may give rise to a claim for compensation.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 4011 of 2024.

Decided On: 26.09.2024

V. Senthil Balaji Vs. The Deputy Director, Directorate of Enforcement

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Augustine George Masih, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/1065/2024.

Read full Judgment here: Click here.

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Supreme Court: Senthil Balaji judgment- Requirement Of Expeditious Trial Must Be Read Into Special Statutes Imposing Stringent Bail Provisions

 Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well-settled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception." These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the Accused without trial for an unreasonably long time.

 {Para 25}

26. There are a series of decisions of this Court starting from the decision in the case of K.A. Najeeb   MANU/SC/0046/2021 : 2021:INSC:50 : (2021) 3 SCC 713, which hold that such stringent provisions for the grant of bail do not take away the power of Constitutional Courts to grant bail on the grounds of violation of Part III of the Constitution of India. We have already referred to paragraph 17 of the said decision, which lays down that the rigours of such provisions will melt down where there is no likelihood of trial being completed in a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. One of the reasons is that if, because of such provisions, incarceration of an undertrial Accused is continued for an unreasonably long time, the provisions may be exposed to the vice of being violative of Article 21 of the Constitution of India.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 4011 of 2024.

Decided On: 26.09.2024

V. Senthil Balaji Vs. The Deputy Director, Directorate of Enforcement

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Augustine George Masih, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/1065/2024.

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Whether the court should grant bail to accused prosecuted for rape if his right to speedy trial is violated?

The present

application is filed by the present applicant on the

ground of delay in trial. Learned counsel for the

applicant pointed out that initially the bail application

No. 1257 of 2022 was filed by the present applicant

which was withdrawn with liberty to file afresh, if the

trial is not commence within six months. Now, already

one year has been passed and there is no progress in the

trial. Certified copy of the roznama placed on record

shows that on several occasions the accused was not

produced before the Court by the jail authority and

therefore the charge was not framed. From the

roznama, it appears that Special Court has not taken the

efforts to secure the presence of the accused before the

Court to proceed with the trial. The Hon’ble Apex

Court in the case of Javed Gulam Nabi Shaikh Vs. State

of Maharashtra and another (supra), if the State or any

prosecuting agency including the court concerned has

no wherewithal to provide or protect the fundamental

right of an accused to have a speedy trial as enshrined

under Article 21 of the Constitution then the State or

any other prosecuting agency should not oppose the

plea for bail on the ground that the crime committed is

serious. Article 21 of the Constitution applies

irrespective of the nature of the crime. In Sheikh Javed

Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of

Uttar Pradesh (supra), wherein also the issue regarding

the speedy trial was considered by the Court and it is

held by the Apex Court that this Court thereafter

proceeded to hold that Section 43D(5) of the UAP Act

does not oust the ability of the constitutional courts to

grant bail on grounds of violation of Part III of the

Constitution. Long incarceration with the unlikelihood

of the trial being completed in the near future is a good

ground to grant bail.

7. Here in the present case also the applicant is

behind the bar since 15th December, 2021. From the

certified copy of the rojnama it reveals the trial was

commenced merely because the accused was not

produced before the Court and the charge was not

framed. The Special Court has not taken any efforts to

secure the presence of the accused before the Court as

well as the prosecution has not taken any efforts to

secure the presence of the accused before the Court.

Thus, in view of the observations made by the Hon’ble

Supreme Court, if the State or any prosecuting agency

including the Court concerned has no wherewithal to

provide or protect the fundamental right of an accused

to have a speedy trial as enshrined under Article 21 of

the Constitution then the State or any other prosecuting

agency should not oppose the plea for bail on the

ground that the crime committed is serious.

Admittedly, the crime committed is serious but in view

of the observations of the Hon’ble Supreme Court and

in view of the Article 21 of the Constitution, the

applicant cannot be kept behind the bar for indefinite

period. In that view of that, the application deserves to

be allowed. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Criminal Application (BA) No. 429 of 2024

Dattatray Shrikrushna Shejole Vs The State of Maharashtra 

CORAM : URMILA JOSHI-PHALKE, J.

DATED : 6th AUGUST, 2024.

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Constitutional bench Supreme Court Judgement delineating Four main facets of access to justice - part of Article 21 of Constitution

30. Four main facets that, in our opinion, constitute the essence of access to justice are:

i) The State must provide an effective adjudicatory mechanism;

ii) The mechanism so provided must be reasonably accessible in terms of distance;

iii) The process of adjudication must be speedy; and

iv) The litigant's access to the adjudicatory process must be affordable.

(i) The need for adjudicatory mechanism: One of the most fundamental requirements for providing to the citizens access to justice is to set-up an adjudicatory mechanism whether described as a Court, Tribunal, Commission or Authority or called by any other name whatsoever, where a citizen can agitate his grievance and seek adjudication of what he may perceive as a breach of his right by another citizen or by the State or any one of its instrumentalities. In order that the right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach. So also the procedure which the court, Tribunal or Authority may adopt for adjudication, must, in itself be just and fair and in keeping with the well recognized principles of natural justice.

(ii) The mechanism must be conveniently accessible in terms of distance:

The forum/mechanism so provided must, having regard to the hierarchy of courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the court/tribunal/court/competent authority to grant such a relief. (See D.K. Basu v. State of West Bengal MANU/SC/0799/2015 : (2015) 8 SCC 744.

(iii) The process of adjudication must be speedy.

"Access to justice" as a constitutional value will be a mere illusion if justice is not speedy. Justice delayed, it is famously said, is justice denied. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process as an option, it would tantamount to denial of not only access to justice but justice itself. In Sheela Barse's case (supra) this Court declared speedy trial as a facet of right to life, for if the trial of a citizen goes on endlessly his right to life itself is violated. There is jurisprudentially no qualitative difference between denial of speedy trial in a criminal case, on the one hand, and civil suit, appeal or other proceedings, on the other, for ought we know that civil disputes can at times have an equally, if not, more severe impact on a citizen's life or the quality of it. Access to Justice would, therefore, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy, for otherwise, the right to access to justice is no more than a hollow slogan of no use or inspiration for the citizen. It is heartening to note that over the past six decades or so the number of courts established in the country has increased manifold in comparison to the number that existed on the day the country earned its freedom. There is today almost invariably a court of Civil Judge junior or senior division in every taluka and a District and Sessions Judge in every district. In terms of accessibility from the point of view of distance which a citizen ought to travel, we have come a long way since the time the British left the country. However, the increase in literacy, awareness, prosperity and proliferation of laws has made the process of adjudication slow and time consuming primarily on account of the over worked and under staffed judicial system, which is crying for creation of additional courts with requisite human resources and infrastructure to effectively deal with an ever increasing number of cases being filed in the courts and mounting backlog of over thirty million cases in the subordinate courts. While the States have done their bit in terms of providing the basic adjudicatory mechanisms for disposal of resolution of civil or criminal conflicts, access to justice remains a big question mark on account of delays in the completion of the process of adjudication on account of poor judge population and judge case ratio in comparison to other countries.

(iv) The process of adjudication must be affordable to the disputants:

Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate Sections of the society. Legal aid to the needy has been recognized as one of the facets of access to justice in Madhav Hayawadanrao Hoskot v. State of Maharashtra MANU/SC/0119/1978 : (1978) 3 SCC 544 where this Court observed:

If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court Under Article 142, read with Articles 21, and 39A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice. This is a necessary incident of the right of appeal conferred by the Code and allowed by Article 136 of the Constitution. The inference is inevitable that this is a State's duty and not government's charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services, especially when they are on behalf of the State, must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court.

31. Affordability of access to justice has been, to an extent, taken care of by the State sponsored legal aid programmes under the Legal Service Authorities Act, 1987. Legal aid programmes have been providing the much needed support to the poorer Sections of the society in the accessing justice in Courts.

 IN THE SUPREME COURT OF INDIA

Transfer Petition (C) No. 1343 of 2008,

Decided On: 19.07.2016

Anita Kushwaha and Ors. Vs. Pushap Sudan and Ors.

Hon'ble Judges/Coram:

T.S. Thakur, C.J.I., F.M. Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde and R. Banumathi, JJ.

Author: T.S. Thakur, C.J.I.

Citation:  MANU/SC/0797/2016,AIR2016SC3506,(2016)8SCC509.

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Whether delay in delivery of judgment amounts to violation of Article 21 of the Constitution of India?

 In Balaji Baliram Mupade & anr. Vs. The State of Maharashtra & Ors.1, the Hon'ble Supreme Court held that judicial discipline requires promptness in the delivery of judgments-an aspect repeatedly emphasized by the Court. The problem is compounded where the result is known but not the reasons. This deprives any aggrieved party of the opportunity to seek further judicial redressal in the next year of judicial scrutiny.  {Para 47}

48. Finally, the Hon'ble Supreme Court disposed of the appeal by making the following observations:

"10. We must note with regret that the Counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rai's case (supra) and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later.

12. The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.

49. Having said so and after consideration of the above-settled propositions of law laid down by the Supreme Court in connection with judgments in civil and criminal matters and the duty of Judicial Officers to complete such judgments/orders in all respect before pronouncing it, as a mandate, we found the situation emanating from the reports quite disturbing. 

 IN THE HIGH COURT OF BOMBAY AT GOA

Suo Motu Writ Petition No. 2 of 2022

Decided On: 02.01.2023

 In Re: High Court on his own motion ( in the matter of pending Judgments and orders passed by Ad-hoc Sr. Civil Judge & J.M.F.C., "A" Court, Quepem)

Hon'ble Judges/Coram:

M.S. Sonak and Bharat P. Deshpande, JJ.

Author: Bharat P. Deshpande, J.

Citation:  MANU/MH/0015/2023.

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Supreme court: State's Transfer Policy Must Give Consideration To Importance Of Protecting Employees' Family Life

The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

 Civil Appeal No. 1243 of 2022;

SK Nausad Rahaman & Ors. Vs Union of India and Ors.

Coram: Dr. Dhananjaya Y. Chandrachud; Vikram Nath, JJ.

Dated:  March 10, 2022 

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Is the right to get an Electricity supply a fundamental right under Article 21 of the Constitution?

 The civil suit filed by the petitioner seeking mandatory injunction for restoration of electricity having been dismissed on the ground of an alternative remedy will not debar him from filing a petition under Article 226 of the Constitution of India as it is a settled proposition of law that electricity is one the Fundamental Rights for existence and protected under Article 21 of the Constitution of India, subject to the petitioner complying with other requirements. {Para 7}

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 890/2022 

ASHISH GUPTA Vs TATA POWER DELHI DISTRIBUTION LIMITED

CORAM:-  MR. JUSTICE SANJEEV SACHDEVA 

Dated: 14.01.2022 

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Guidelines of Patna High court for suspension of sentence of convict by Appellate court

 Conclusion

111. The discussion, undertaken hereinbefore, may be summarized as follows:—

a. While considering an application for suspension of sentence, the Appellate Court has to record reasons, in writing. The requirement of recording of reasons must be preceded by careful consideration of the relevant aspects of the case at hand including issues of human rights or other relevant aspects as envisaged under Article 21 of the Constitution of India.

b. The mere fact that during the period, when an accused person was on bail during trial, ‘there was no misuse of liberty does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered by the Court is whether reasons exist, on the merits of the case, to suspend the execution of sentence and, thereafter, grant bail to the appellant.

c. During pendency of an appeal against conviction or sentence or both, temporary or interim or provisional suspension of sentence, on some extremely rare circumstances, is inherent in the jurisdiction of the Appellate Court, under Sec. 389 Cr. P.C. by the doctrine of implied power. Such a recourse must be taken only when pressing circumstances are shown to exist and when the Court is of the opinion that further inquiry would be required before finally disposing of the application for suspension of sentence pending decision on the convict's appeal.

d. It may be equally necessary to mention that circumstances, which show existence of a right within the ambit Article 21 of the Constitution of India, may be considered as valid circumstances, while granting interim suspension pending disposal of an appellant's application seek ing suspension of sentence and bail.

e. Notwithstanding the fact that a prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21, meaningful. Thus, inordinate delay, in disposal of appeal, terminal ailments, marriage of daughter, performing last rites, etc., are circum stances falling in the broader definition of “right to life” and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his substantive appeal.

In the High Court of Patna

(Before I.A. Ansari and V.N. Sinha, JJ.)

Chandra Shekhar Bharti Vs The State of Bihar 

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Whether delay in delivery of reasoned judgment violates Article 21 of the Constitution?

 The report was submitted by the Registrar

(Judicial) stating that the order was pronounced on

21.01.2020 being only the operative portion, and the

reasons were received by the Registry only on 09.10.2020

after almost nine months. It was uploaded on the same

date.

9. On the aforesaid short ground, without even looking

at any other aspect, we issued notice returnable for

today and stayed the operation of the impugned order.

10. We must note with regret that the counsel extended

through various judicial pronouncements including the

one referred to aforesaid appear to have been ignored,

more importantly where oral orders are pronounced. In

case of such orders, it is expected that they are either

dictated in the Court or at least must follow

immediately thereafter, to facilitate any aggrieved

party to seek redressal from the higher Court. The

delay in delivery of judgments has been observed to be a

violation of Article 21 of the Constitution of India in

Anil Rai’s case (supra) and as stated aforesaid, the

problem gets aggravated when the operative portion is

made available early and the reasons follow much later.

11. It cannot be countenanced that between the date of

the operative portion of the order and the reasons

disclosed, there is a hiatus period of nine months!

This is much more than what has been observed to be the

maximum time period for even pronouncement of reserved

judgment as per Anil Rai’s case (supra).

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL N O.3564/2020

BALAJI BALIRAM MUPADE Vs THE STATE OF MAHARASHTRA 

Author: SANJAY KISHAN KAUL, J.

Dated: OCTOBER 29, 2020.

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Highlights of Supreme Court Judgment on Privacy

CONCLUSION

496. The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.

497. It was rightly expressed on behalf of the Petitioners that the technology has made it possible to enter a citizen's house without knocking at his/her door and this is equally possible both by the State and non-State actors. It is an individual's choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.

498. If the individual permits someone to enter the house it does not mean that others can enter the house. The only check and balance is that it should not harm the other individual or affect his or her rights. This applies both to the physical form and to technology. In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right. How it thereafter works out in its inter-play with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case. That it may give rise to more litigation can hardly be the reason not to recognize this important, natural, primordial right as a fundamental right.

499. There are two aspects of the opinion of Dr. D.Y. Chandrachud, J., one of which is common to the opinion of Rohinton F. Nariman, J., needing specific mention. While considering the evolution of Constitutional jurisprudence on the right of privacy he has referred to the judgment in Suresh Kumar Koushal v. Naz Foundation MANU/SC/1278/2013 : (2014) 1 SCC 1. In the challenge laid to Section 377 of the Indian Penal Code before the Delhi High Court, one of the grounds of challenge was that the said provision amounted to an infringement of the right to dignity and privacy. The Delhi High Court, inter alia, observed that the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21 of the Constitution of India. The view of the High Court, however did not find favour with the Supreme Court and it was observed that only a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis for declaring the Section ultra virus of provisions of Articles 14, 15 and 21 of the Constitution. The matter did not rest at this, as the issue of privacy and dignity discussed by the High Court was also observed upon.

The sexual orientation even within the four walls of the house thus became an aspect of debate. I am in agreement with the view of Dr. D.Y. Chandrachud, J., who in paragraphs 123 & 124 of his judgment, states that the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights and the Courts are often called up on to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. Ones sexual orientation is undoubtedly an attribute of privacy.

The observations made in Mosley v. News Group Papers Ltd. (2008) EWHS 1777 (QB), in a broader concept may be usefully referred to:

130... It is not simply a matter of personal privacy v. the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognized criteria.

131. When the courts identify an infringement of a person's Article 8 rights, and in particular in the context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest which in the particular circumstances is strong enough to outweigh it; that is to say, because one at least of the established "limiting principles" comes into play. Was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made by the individual concerned (as with Naomi Campbell's public denials of drug-taking)? Or was it necessary because the information, in the words of the Strasbourg court in Von Hannover at (60) and (76), would make a contribution to "a debate of general interest"? That is, of course, a very high test, it is yet to be determined how far that doctrine will be taken in the courts of this jurisdiction in relation to photography in public places. If taken literally, it would mean a very significant change in what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years.

500. It is not necessary to delve into this issue further, other than in the context of privacy as that would be an issue to be debated before the appropriate Bench, the matter having been referred to a larger Bench.

501. The second aspect is the discussion in respect of the majority judgment in the case of ADM Jabalpur v. Shivkant Shukla MANU/SC/0062/1976 : (1976) 2 SCC 521 in both the opinions. In I.R. Coelho v. The State of Tamil Nadu MANU/SC/0595/2007 : (2007) 2 SCC 1 it was observed that the ADM Jabalpur case has been impliedly overruled and that the supervening event was the 44th Amendment to the Constitution, amending Article 359 of the Constitution. I fully agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.

502. Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.

ORDER OF THE COURT

503. The judgment on behalf of the Hon'ble Chief Justice Shri Justice Jagdish Singh Khehar, Shri Justice R.K. Agrawal, Shri Justice S Abdul Nazeer and Dr. Justice D.Y. Chandrachud was delivered by Dr. Justice D.Y. Chandrachud. Shri Justice J Chelameswar, Shri Justice S.A. Bobde, Shri Justice Abhay Manohar Sapre, Shri Justice Rohinton Fali Nariman and Shri Justice Sanjay Kishan Kaul delivered separate judgments.

504. The reference is disposed of in the following terms:

(i) The decision in M.P. Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;

(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;

(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty Under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 494 of 2012, 

Decided On: 24.08.2017

 Justice K.S. Puttaswamy Vs.  Union of India (UOI) and Ors.

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