Supreme Court of India underscores the right to speedy trial under Article 21 as a ground for bail when trials get unduly delayed, despite having stringent restrictions for bail in the Prevention of Money-Laundering Act, 2002 (PMLA).
Denial of Bail to Umar Khalid After Five Years in Jail
However, the denial of bail to Umar Khalid and Sharjeel Imam in Gulfisha Fatima v. State (Govt. of NCT of Delhi) [2026 INSC 2] goes against its own jurisprudence. It erodes constitutional guarantees that flowed from India’s freedom struggle
The recent decisions of the Supreme Court show deep inconsistencies, with different benches taking contrary decisions on similar facts, wholly ignoring the settled principles on liberty.
The basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception.
Criminal Courts Must guard Individual Liberty
The Supreme Court in Satender Kumar Antil vs Central Bureau Of Investigation observed that the grant or denial of bail is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
The Court added that the Criminal courts are the guardian angels of liberty, which has to be preserved, protected, and enforced and it is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos.
Precedents in Granting of Bail in PMLA
A three Judge Bench of the Supreme Court in Padam Chand Jain v. Enforcement Directorate, (2025) SCC OnLine SC 1291, reiterated that prolonged incarceration cannot be allowed to convert pretrial detention into punishment.
In Union of India v. K.A. Najeeb, a three Judge Bench of the Supreme Court observed that the presence of statutory restrictions under Section 43¬D (5) of UAPA per¬se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of the rights for speedy trial under Article 21 of the Constitution. On the contrary, the restrictions under a Statue and the powers exercisable under Constitutional Jurisdiction can be well harmonised. The rigours of Section 43 D (5) of UAPA or similar statutes will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. In this case the charges levelled against the accused are grave and a serious, but the bail was granted keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed soon.
In Javed Gulam Nabi Shaikh v. State of Maharashtra & Anr. [(2024) 9 SCC 813], the Supreme Court observed that it is well settled that 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.
The above proposition in Javed Gulam Nabi Ahmed case was relied on by the Supreme Court in Manish Sisodia v. Enforcement Directorate [2024 INSC 595] and in the judgement it was held that long period of incarceration for around 17 months and the trial not even having commenced, the appellant in that case has been deprived of his right to speedy trial.
Bail in PMLA Case
The Supreme Court in V. Senthil Balaji v. Deputy Director, Enforcement Directorate, [2024 INSC 739] has held that under the statutes such as PMLA, where maximum sentence is seven years, prolonged incarceration pending trial may warrant grant of bail by Constitutional Courts, if there is no likelihood of the trial concluding within a reasonable time. Statutory restrictions cannot be permitted to result in indefinite pretrial detention in violation of Article 21.
Considering all the above precedents, the Supreme Court in Arvind Dham v Directorate of Enforcement [2026 INSC 12] observed that the right to speedy trial, enshrined under Article 21 of the Constitution, is not eclipsed by the nature of the offence. Prolonged incarceration of an undertrial, without commencement or reasonable progress of trial, cannot be countenanced, as it has the effect of converting pretrial detention into form of punishment.
Stringent Bail Provision in NDPS
The Bail provision in NDPS Act is stringent. To grant bail the competent court needs to be satisfied that prima-facie the accused is not guilty and that he is unlikely to commit another offence while on bail.
The Section 43D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS.
Bail under PMLA
The Section 45 of PMLA, which deals with bail, starts with non-obstante clause. Section 45 imposes two conditions for grant of bail to any person accused of any offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the Act :
- that the prosecutor must be given an opportunity to oppose the application for such bail;
- that the court must be satisfied that there are reasonable grounds for believing that the accused persons is not guilty of such offence and that he is not likely to commit any offence while on bail.
In Manish Sisodia v. Directorate Of Enforcement [2024 INSC 595], the Supreme Court observed that when the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, would be guided to exercise the power to grant bail, where the trial would take years. In case of delay coupled with incarceration for a long period and depending on the nature of the allegations, the right to bail will have to be read into Section 45 of PMLA.
Bail Jurisprudence Reveals a Paradox
The bail jurisprudence of the Supreme Court under special statutes such as the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) and the Prevention of Money Laundering Act, 2002 (“PMLA”) shows divergence and a constitutional paradox.
The Supreme Court reaffirms that “bail is the rule, jail the exception,” but its decisions in the recent times show a sharp divergence between principle and practice.
