22 June, 2021

A Broken Rule

Courts are routinely flouting basic judicial norms on bail

A Broken Rule

“No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

—Magna Carta

These lines from Clause 39 of the Magna Carta form the bedrock of personal liberty and due process. In India, right to life and personal liberty is the most sacrosanct fundamental right. A person can be deprived of his ­liberty only “according to the procedure established by law”. There is a struggle between the procedure established by law and the due process of law as ­req­uired by the Eighth Amendment to the American Constitution—the two poles of bail jurisprudence not just in India, but around the world. Even though the ­makers of India’s Constitution chose to adopt “procedure established by the law”, the Supreme Court in Sunil...

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