Professional Dignity in the Digital Age :
A Call to the Next Generation of Advocates

(By Kuriakose George Thekkel, Chief Manager (Law), State Bank of India)
E-mail :kgthekkel@gmail.com           Mob.: 9895106460

 “The Bar is not a private guild, nor is the Bench a cloistered conclave. It is a public institution serving the nation. Its conduct must elevate, not erode, public faith.”   -- Justice V.R. Krishna Iyer

“The strength of the judiciary lies not in might or numbers, but in the reverence with which it is viewed by those who appear before it.”       -- Justice H.R. Khanna

“A profession whose members regard it as a duty to uphold its dignity is one that commands the confidence of the people.”          -- Justice Vivian Bose

Abstract

The legal profession — once steeped in oral tradition, deference to decorum, and an almost sacrosanct reverence for the courtroom — now navigates a rapidly shifting terrain shaped by the pervasive influence of digital media. The recent incident in Kerala, where a newly enrolled advocate released an Instagram reel featuring the official car of a sitting High Court Judge, has sparked a necessary national conversation on the evolving boundaries of professional conduct in the legal fraternity. The Kerala Bar Council’s issuance of a show-cause notice to the young advocate is not merely a disciplinary response — it is indicative of a broader, jurisprudential inflection point.

This moment reflects not only on rules but on the deeper values that underpin our vocation. I am reminded of a seemingly small, yet profoundly instructive episode from my own initial days of practice. I was once standing at the back of a courtroom, casually conversing with another young lawyer — my back turned inadvertently to the Bench. A hand gently fell on my shoulder. I turned to find an unfamiliar senior advocate smiling at me. In a calm but firm tone, he said, “Son, never ever stand in court with your back turned to the Bench. It’s a matter of respect, not just decorum.” I did not know who he was at the time. Days later, I learned that the man offering that quiet counsel was none other than the illustrious K.P.Dandapani, a doyen of the Bar and a name that commands enduring respect in Kerala’s legal circles.That moment has remained etched in my consciousness. It spoke volumes about the culture of respect, restraint, and invisible discipline that defines the legal profession.

It is apprehended that this culture is now in tension with a generation reared in the immediacy of likes, views, and virality. The dissonance is not generational per se—it is cultural. It reflects a lacuna in the professional conditioning of young advocates, who must be taught not only the law but the ethos of lawyering. The standards of dignity, silence, and reverence for the institution are not ornamental traditions—they are the sine qua non of legal integrity.

The reel in question depicted visuals of a High Court Judge’s official vehicle, prominently displaying the Indian Tricolour, the Ashoka Chakra, and the nameplate reading “Judge, High Court of Kerala.” While the intent may have been celebratory, the symbolism and its misappropriation carry grave implications. The Bar Council deemed the video not merely inappropriate but actively “malicious and mischievous,” further holding that it constituted a form of unprofessional solicitation and affront to judicial dignity.

Under the Advocates Act, 1961, conduct unbecoming of the legal profession can attract disciplinary proceedings, including suspension or removal from the Bar. The statute vests the Bar Council and its disciplinary committees with the authority to preserve the integrity of the profession by adjudicating on issues of misconduct. In this context, the symbolic misuse of judicial insignia—particularly in a public and promotional digital medium—risks eroding public confidence in the sanctity of judicial institutions and the independence of the legal profession.

The legal profession is rooted in time-honoured values—dignity, confidentiality, restraint, and fidelity to institutional norms. In contrast, the architecture of social media is designed to amplify the self, to prioritize visibility over virtue, and immediacy over deliberation. These platforms are not inherently inimical to legal professionalism, but their use by members of the Bar—particularly new entrants—requires a heightened sense of prudence and ethical literacy.In the words of Justice Vivian Bose, one of India’s earliest Supreme Court judges, “A profession whose members regard it as a duty to uphold its dignity is one that commands the confidence of the people.” That confidence is what is at stake when professional conduct in the legal community is trivialized—even inadvertently—in the name of modern expression.

The challenge is not merely behavioural but structural. Young lawyers entering the profession in the digital era often possess impressive technological fluency but limited exposure to the nuanced moral infrastructure that underpins legal practice. In an environment where professional image is curated as much online as it is in court, the parameters of acceptable conduct must be both reaffirmed and rearticulated.

A major factor contributing to these lapses is the systemic inadequacy of professional ethics training in Indian legal education. Most law schools devote disproportionate attention to doctrinal subjects at the expense of cultivating a deep-seated understanding of professional comportment. This pedagogical imbalance produces graduates who are proficient in black-letter law but underprepared for the ethical dilemmas of real-world practice—especially those emerging in the context of digital communications.

Topics such as the ethical use of social media, digital client confidentiality, and online representations of professional status remain conspicuously absent from most curricula. As a result, law graduates often enter the profession with only a superficial awareness of the codes of conduct expected of them, exposing them—and by extension, the profession—to reputational risk.It must be taught that alawyer’s duty to his client, to the court and to the cause of justice transcends jurisdictional borders and must now extend to cyberspace, where impressions are formed, careers are shaped, and public trust is either cemented or corroded.

In an era where digital self-expression intersects uncomfortably with the imperatives of professionalism, every post, video, or image shared by a legal practitioner must undergo a fundamental threshold test: Would this content uphold the dignity of the legal profession if viewed by a judge, a senior member of the Bar, or a client? This is not merely a rhetorical device—it is a necessary filter in a profession where credibility, restraint, and perception carry enduring consequences. The act of posting content online is no longer a private indulgence; it is a public act with profound consequences on one’s profession.

Caution must be exercised when engaging with symbols of judicial authority. Reproducing or referencing court insignia, judicial vehicles, or other institutional emblems in non-official contexts trivializes their constitutional significance. These are not to be treated as props or aesthetic enhancements—they are emblematic of the rule of law and the constitutional framework within which we operate. To repurpose them for casual or personal media is not only inappropriate but also erodes the symbolic distance that must exist between the practitioner and the institution.

A clear demarcation must be maintained between personal expression and professional identity. While individuality and authenticity have their place in the digital space, they cannot come at the expense of institutional credibility. The intermingling of personal gratification with professional representation—often manifesting in content that is performative or self-promotional—invites both ethical scrutiny and potential regulatory sanction. The legal profession has always demanded a degree of self-effacement; in the digital age, that demand has only grown more complex.

There is also a pressing need to reinforce awareness around Rule 36 of the Bar Council of India Rules, which explicitly prohibits any form of advertisement or solicitation by advocates. Many digital actions, even those cloaked in subtlety or indirect suggestion, risk violating the spirit if not the letter of this rule. Therefore, integrity, not undesirable visibility, must remain the currency of professional success.

If one chooses to maintain a presence in the digital domain, its orientation must be educational, not self-centric. The true utility of online platforms lies in their capacity to foster public legal awareness and contribute to a broader understanding of constitutionalism, justice, and rights. Thought leadership, nuanced commentary on legal developments, and responsible advocacy for the rule of law not only elevate the individual’s stature but also reinforce the profession’s public mission. In this, there is ample room for innovation—but it must be anchored in humility and public service.

Senior members of the Bar, by virtue of their experience and stature, bear an amplified responsibility. Their role is not merely to mentor on procedural efficiency or courtroom craft, but to act as custodians of professional culture. They must steer the new entrants in the right direction. Justice H.R. Khanna, a beacon of judicial integrity, once said, “The strength of the judiciary lies not in might or numbers, but in the reverence with which it is viewed by those who appear before it.” That reverence is shaped in equal measure by what happens inside courtrooms and what is carried outside—into the world, both physical and digital.

Parallelly, the onus also lies on law schools to treat digital ethics and professional comportment not as cursory modules but as core pillars of legal education. The traditional focus on legal theory and black-letter law must be complemented by a transformative pedagogy in ethics—one that engages students with real-world dilemmas and cultivates a deep sense of judgment. The ability to navigate the grey zones of digital expression with discretion and integrity is now as critical as mastering statutory interpretation.

One must never lose sight of the long-term consequences that even momentary lapses in our conduct can produce. Professional misconduct in the digital age is often not a private fall from grace—it is a public unravelling. Reputational damage, once inflicted, is rarely reversible. In a profession built almost entirely on credibility, trust, and perception, the margin for error is narrow and often unforgiving. Each indiscretion weakens not just the individual’s standing, but the collective image of the Bar in the eyes of the public.

The legal profession stands at an inflection point. The digital age offers unprecedented opportunities for legal engagement, civic education, and public discourse. But these same opportunities demand commensurate responsibility. The standards of professional conduct must extend with equal force into virtual spaces. The dignity of the legal profession—rooted in constitutional ideals and societal trust—cannot be diluted by the imperatives of digital virality.

One can only hope, perhaps even whisper a wish into the void, that the Bar Council—stern guardian of our noble profession—will temper its justice with wisdom, as it confronts the tender inexperience of this fledgling entrant. Let us pray that the winds of this misfortunate event do not sweep the young advocate into their cruel spiral. And yet, amid this uncertainty, let us cast a blessing into the future: may he, in time, become a lawyer of rare mettle, honour-bound to the truths of justice, and deeply attuned to the callings of a society that aches for integrity.

NEEDED, ENDING NOT MENDING

K. Ramakumar, Senior Advocate, High Court of Kerala
E-mail : ramakumarassociates@gmail.com             Ph.0484-2376428

An American president-elect asked about the formation of his cabinet replied, “I will seek those who do not seek them.” A meritorious lawyer growing eminent on his own does not need to seek recognition from any quarters. It will come after him if he is equipped, experienced, and above all, has unimpeachable character.

This country has a glorious tradition of always respecting gurus (teachers), parents (matha-pitha), and elders. Does any one of them implore that they be respected? Likewise, respect and recognition as a senior in the Bar belong to those who do not seek them. The honour should seek them and not vice versa. This is what the High Court of Orissa said in Banshidhar Baug v. Orissa High Court (AIR 2021 NOC 735),on who should be designated:

“(I) He is an Advocate with towering personality. He is suave and gentle. His disposition towards the Court and his fellow counsels is impressive. He is known for his ready wit. Ask him any question on any law, he has an answer with reasonings. His standing in the Bar is remarkable. He is a social factor in the society, he lives. He is humble, dignified, kind and a person with sobriety. He would however not come to stand in a queue to file an application for being designated as "Senior Advocate". Such a person being an asset to the profession, suomotu power should be reserved to be exercised for such a person only and such power should be given to the High Courts, as in our understanding, such power has not been given to the High Courts in the guidelines/norms framed in Indira Jaising case.

(II) Designation of "Senior Advocate" is a coveted position from the point of view of the Bar and the society. There should not be crowd in such a coveted position. Every Tom, Dick & Harry should not be brought to this position by whatever means permissible. Certain percentage of the total strength of a particular Bar should only be allowed to enter into this coveted position.”

Ironically, in Jitender @ Kalla v. State (Govt.) of NCT of Delhi (2025 INSC 667), the Supreme Court was constrained to reconsider the parameters for designation of senior advocates, as one senior advocate was found involved in malpractices for which he apologised ‘in at least half a dozen cases’.

It may be pointed out that several leading counsel pointed out before the Supreme Court in Jitender @ Kalla(supra)that designation must be by conferment and not by application. This was accepted by the Supreme Court in the following words:

“It is not out of place to observe that subjecting an Advocate having standing at the Bar to interview by three senior-most Judges and two senior members of the Bar violates the dignity of the noble profession.”

How then can the system of applying for seniority be sustained on any moral, ethical or other standards followed by a noble profession? Most of the leading counsel who addressed arguments in Jitender @ Kalla(supra)put forward the view that only the really eligible shall be designated. See what the Supreme Court said:

“Even the members of the Bar owe a duty to ensure that only deserving Advocates get designation, and therefore, their suggestions must be given importance in the process of framing rules.”

The Solicitor General lamented before the Supreme Court that canvassing and lobbying could not be stopped. On character, this is what the Court said:

“No one can dispute that an advocate who lacks integrity or does not possess a quality of fairness is disentitled to designation.”

The Court, however, pointed out that there is no method to assess character, honesty and integrity. This is what the Court said:

“No specific points have been assigned for the character, honesty and integrity. The point-based assessment, as can be seen from the earlier discussion, can hardly be objective, and it tends to be highly subjective.”

The legislature never contemplated an advocate making applications seeking designation.  Sub-section 2 of Section 16 of the Advocates Act indicates that designation has to be conferred by the Supreme Court or the High Courts. This means that, hereafter, the practice of seeking self-designation has become totally unsupportable in law and therefore void and inoperative. The Supreme Court had also said that Section 16(2) does not empower any High Court in framing rules for the designation of seniors.

“As can be seen from sub-section (2) of Section 16, prima facie, the scheme of the provision is that no advocate can seek designation, but the privilege of designation has to be conferred by this Court or High Courts with his consent. In paragraph 2 of Indira Jaising-II [(2023) 8 SCC 1], this Court held that designation as a senior advocate in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession. Therefore, the question that needs serious consideration is whether the Court should permit applications to be made for grant of designation, though the statute does not contemplate that. If the legislature intended to allow advocates to make applications for designation, sub-section (2) of Section 16 would not have provided for this Court or High Courts to take the consent of advocates before designation.”

This means what? All the designations so far made by the High Courts after the promulgation of Section 16 of the Advocates Act, 1961 stand annulled, without authority andnon est in the eyes of the law.

A senior in the bar is looked upon as a role model for the younger section. By reason of his capacity, credibility and trustworthiness, a lawyer gains recognition as a senior. This cannot be begged or canvassed or be given on favour dispensation or favour seeking. Please see what the Supreme Court said:

“The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suomotu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

Ultimately, the Court found that the act never contemplated making an application at all.This is what the Court said:

“On plain reading of sub-section (2) of Section 16, the Legislature never contemplated an Advocate making an application seeking designation. The scheme of Sub-section (2) of Section 16 indicates that designation has to be conferred by the Supreme Court or the High Courts. The scheme of sub-section (2) of Section 16 indicates that an individual Judge of the Supreme Court or the High Court, as the case may be, cannot recommend any Advocate for designation as the decision is a collective decision of the Full Court. Even if an Advocate deserving of a designation does not apply for designation, on the basis of the discussion in the house, the Full Court can always recommend his/her designation, subject to his/her consent. For that purpose, the recommendation in writing of an individual Judge is not warranted.”

The long and short of the discussions in the Bar and the declaration of law made by the Supreme Court leaves no one in doubt that the highest court does not approve lawyers worth the name applying for seniority, a distinction which should go in search of them rather than them running after it. The Supreme Court felt that new rules must be framed. Until then, what happens? In my respectful submission, all the designations so far made are apparently invalid in law and contrary to the provisions of the Advocates Act.

The system undoubtedly needs mending. But the best method of mending is to end it all together.

Doctrine of Level Playing Field

N. Ajith, Advocate, High Court of Kerala
E-mail : najithmenon@gmail.com       Mob: 9847304930

Introduction

The doctrine of the level playing field is a foundational principle in law, economics, and public policy, aimed at ensuring fairness and equality of opportunity among participants in a competitive environment. While the term is often used metaphorically, its implications are farreaching, influencing government policy, business practices, and international economic relations.

Meaning and Origin

The phrase "level playing field" originates from sports, where a sloping field would unfairly advantage one team over another. In its broader application, the doctrine refers to a situation in which all participants are subject to the same rules and standards, ensuring that no competitor has an undue advantage due to external factors. It is not about guaranteeing equal outcomes, but rather about providing equal opportunities by enforcing consistent rules for all.

Legal and Constitutional Basis

In India, the doctrine of the level playing field is closely linked to Article 19(1)(g) of the Constitution, which guarantees the right to practice any profession or to carry on any occupation, trade, or business. The courts have recognized that this right includes the expectation that the state will not create policies or conditions that give an unfair advantage to one competitor over another. The doctrine is also intertwined with Article 14, which guarantees equality before the law, and Article 21, which protects the right to life and personal liberty.

The doctrine of 'level playing field' is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. Decisions or acts which result in unequal and discriminatory treatment, would violate the doctrine of 'level playing field' embodied in Article 19(1)(g).

Application in Government Contracts and Regulation

The doctrine is particularly significant in the context of government contracts and public procurement. It mandates that all eligible competitors must be given an equal opportunity to participate, and that the criteria for selection should not be so onerous or tailored as to favor a particular party. This ensures that public resources are allocated efficiently and fairly, and that the public interest is served by promoting healthy competition.

In practice, this means that government policies, tenders, and regulations should:

• Avoid arbitrary or discriminatory eligibility criteria
• Ensure transparency in processes
• Apply the same standards and rules to all participants
• Provide legal certainty and consistency in decision-making
• International Economic Law and Trade

On the global stage, the doctrine of the level playing field is a key principle in international economic law. It underpins efforts to prevent unfair competition arising from divergent regulations, subsidies, or state interventions. However, international law recognizes that absolute regulatory uniformity is neither practical nor necessary. Instead, the focus is on establishing minimum standards, such as labor rights, environmental protections, and anti-subsidy rules, that all participants must meet to prevent distortions in competition.

For example, trade agreements may require parties to adhere to a set number of International Labour Organization (ILO) conventions or environmental agreements as a baseline for fair competition. Regulatory divergences are tolerated as long as they do not create significant competitive imbalances or undermine agreed-upon international norms.

Principles of Justice and Fairness

The doctrine of the level playing field is closely related to broader principles of justice and fairness. It embodies the idea of formal equality of opportunity, where all individuals or entities have the same chance to succeed, provided they abide by the same rules. This is distinct from equality of outcome, which seeks to equalize results regardless of input or effort.

The doctrine interacts with other principles such as:

Equity : Rewarding individuals based on their input or merit

Equality : Distributing benefits and burdens equally

Need : Allocating resources based on individual needs

Balancing these principles is often complex, as strict adherence to one may conflict with the others. The level playing field doctrine seeks to strike a balance by ensuring that rules do not inherently favor or disadvantage any participant, while still allowing for merit-based differentiation and support for those with greater needs.

Limitations and Challenges

While the doctrine aims to promote fairness, it is not without limitations:

Regulatory Burden: Uniform rules may disproportionately impact smaller or less-resourced participants, inadvertently favoring larger entities that can better absorb compliance costs.“Public Interest: The doctrine is subject to overriding public interest considerations, such as national security, public health, or social welfare.“Dynamic Standards: In international contexts, defining the "floor" and "ceiling" for acceptable regulatory divergence is complex and often contested.

Conclusion

The doctrine of the level playing field is a cornerstone of fair competition in law, business, and international relations. It ensures that all participants operate under the same set of rules, thereby promoting efficiency, innovation, and public trust. While challenges remain in its implementation, especially in balancing competing principles and adapting to evolving standards, the doctrine remains essential for upholding the ideals of justice, equality, and the rule of law.

The Uneven Scales : The Struggles of Women in Litigation and the Urgent Call for Reform

(By Akhil Ben, Advocate, Trivandrum)
E-mail : akhilben854@gmail.com                   Mob.: 6282315526

The legal profession has long prided itself on being the guardian of justice, the upholder of rights and the beacon of hope for the marginalized. Yet, ironically, within it’s own corridors, particularly in litigation, it continues to nurture and perpetuate a culture that routinely sidelines, undervalues and endangers one of it’s own : the women lawyers.

Every year, countless young women enter litigation brimming with hope, armed with legal knowledge and idealism to contribute meaningfully to the justice system. However, the harsh realities of court practice soon expose them to a professional environment marred by gender discrimination, subtle hostility and disturbingly often, overt misconduct. The court corridors, which should symbolize justice and equity, have instead become spaces where women litigators must constantly guard their dignity and safety.

The harrasment women face in these spaces is not always dramatic or visible. It often hides behind patronizing comments, dismissive attitudes, or in the way male counterparts and even seniors address or sideline them. Instances of stalking, unwelcome advances, and casual misogyny are disturbingly frequent. Many young women advocates recount being followed within court premises, being subject to unsolicited remarks, or being propositioned by seniors who should have been their mentors. In a profession that requires immense mental focus and confidence, such predatory behaviour chips away at a woman lawyer’s sense of security and professional worth.

Adding to this is the profession’s notoriously unforgiving schedule. The long hours spent waiting for cases to be called out, the unpredictability of court work, and the expectation to be constantly available disproportionately affect women, particularly in a society where domestic responsibilities are still largely seen as a woman’s duty. This imbalance forces many competent women advocates to either leave litigation altogether or settle for roles with less visibility and growth.

Even within law offices, the discrimination persists. Women are often relegated to desk work — drafting, procedural filings, or attending hearings only to seek adjournments— while their male counterparts are handed important briefs and opportunities to argue cases, build client relations, and develop a courtroom presence. The unspoken assumption that women are less efficient, less assertive, or less resilient in the adversarial courtroom environment deprives many brilliant women litigators of the chance to build the same networks and reputations as their male peers.

Yet, despite these formidable barriers, there are women who have not only survived but flourished in litigation. Senior advocates like Indira Jaising, Leila Seth, and others have carved spaces for themselves in this male-dominated profession through sheer resilience and brilliance. However, the numbers of such women remain discouragingly low in comparison to their male counterparts, largely because the system itself remains hostile to their presence.

What is urgently needed is systemic reform, beginning with court safety. Every court complex must establish fully functional, independent harassment redressal cells with stringent anti-harassment mechanisms, capable of acting swiftly and impartially against misconduct. A zero-tolerance policy for sexual harassment, stalking, and verbal abuse must be implemented rigorously, with exemplary consequences for offenders, irrespective of their seniority or standing.

Court management bodies must also actively work towards creating a culture of respect and equality. Gender-sensitization programs for members of the Bar, Bench, and court staff should not be treated as token exercises but as ongoing, essential engagements. Special committees with female advocates and Judges should be established to monitor the environment of court premises and suggest reforms periodically.

Furthermore, deliberate efforts should be made within law offices to provide equal opportunities for women. Firms and senior advocates must introspectively assess whether their briefing patterns, courtroom assignments, and mentorship opportunities reflect a gender bias and actively work to correct it. Bar Associations should incentivize inclusive practices and penalize discriminatory ones.

Creating safer, more progressive litigation spaces for women is not just about addressing harassment. It’s about acknowledging and dismantling the institutionalized misogyny that continues to persist in this profession. It is about ensuring that women advocates are not just survivors in litigation but equal stakeholders in the shaping of the legal landscape.

A progressive legal system demands a progressive Bar — one that genuinely embodies the ideals it claims to uphold. While the road ahead remains challenging, it is heartening to remember that change is already in motion. Trivandrum’s own women advocates like Late.Adv.Celine Wilfred and Adv. Gayathri Sreekumar have, against formidable odds, carved their rightful place in the profession. Their grit, intellect, and unwavering commitment to the cause of justice have left lasting impact on the Trivandrum Bar, inspiring newer generations of women lawyers to persist and thrive.

Ensuring safety, dignity, and equal opportunity for women in litigation is not a favour or a progressive concession — it is a long overdue necessity. But if the profession acknowledges its past failures and commits sincerely to reform, it can create a future where women are not mere survivors in litigation, but respected leaders, mentors, and equal architects of the legal landscape. The legal fraternity must now choose to be the profession it was always meant to be — one where justice begins at home.

Piercing Through the Dynamics of Bail Jurisprudence –
An Analysis into Landmark Judgments of the Supreme Court

(Authored by Nanda Surendran, Advocate, High Court of Kerala)

E-mail : nandasurendran27@gmail.com       Mob.: 8138816382

Introduction

“Bail is rule, jail is an exception” – a principle that resonates through the system of criminal law since time and again. The principle was notably recognized and weaved into the fabrics of criminal jurisprudence in India by Justice V. R. Krishnayyar in State of Rajasthan v. Balchand₁. The incorporation of this basic rule into the legal framework of bail laws in India has thereafter underscored the relevance of equating bail or the conditional release of an accused during the pendency of trial, with concepts such as personal liberty and justice, which are engrained as the basic features of our Constitution. While the Code of Criminal Procedure lays down only the technicalities and procedural aspects with regard to grant of bail, the jurisprudence behind bail has indubitably been developed by means of precedents, and in fact the best example of such a precedent gaining the status of a law that governs the field is that of bail is rule and jail is an exception. It lays down the groundwork upon which the discretion of the court entertaining the bail application ought to be exercised and the contours of the same. The Apex Court has in several landmark decisions interpreted and expanded the principle to safeguard the fundamental rights of personal liberty and speedy trial vested in an accused and various judicial forums across the country have resonated bail jurisprudence along the lines of the same.

In the last year, the Supreme Court of India dealt with several cases pertaining to bail, the pronouncements therein having resulted in attaining the status of a ruling precedent in bail matters and have also paved way as a guiding force for courts while determining bail applications. These judgments, have reiterated the existing landmark decisions in support of the principle “bail is rule, jail is an exception” and have further stepped up a level to expand its application in situations where the court is satisfied that the fundamental rights of life and liberty of an accused is in detriment due to the prolonged trial or the impossibility to even commence the trial in certain scenarios. Coincidentally or not, three out of such judgements revolve around similar set of facts, being the accused incarcerated under the Prevention of Corruption Act, 1988 (“PCA”) and the consequent arrest by the Enforcement Directorate in connection with Section 3 of the Prevention of Money Laundering Act, 2002
(“PMLA”) and these judgments have henceforth been considered as latest additions to the set of landmark judgements rendered by the Apex Court in the realm of bail, especially due to the impact that they shall have on considering applications of persons alleged to have committed offences punishable under such statues, which contain restrictions on grant of bail.

Case Study I - Manish Sisodia v. Directorate of Enforcement

The first case is that of Manish Sisodia v. Directorate of Enforcement₂ rendered by Hon’ble Justice B.R.Gavai. Here, Justice Gavai highlights the importance of securing the personal liberty of an undertrial accused in the event where the court and investigating authority is of the evident view that trial will not commence any time soon. The facts of the case pertain to the arrest and detention of the accused, who was incarcerated in connection with the allegations of corruption in the Delhi Excise Policy. The accused was booked both by the CBI under the PCA and the ED under the PMLA and while his bail application in the case registered by the ED was rejected by the Delhi High Court, the accused had already undergone 17 months of incarceration post his arrest. The courts below had applied the triple test, i.e, to see whether the accused were a flight risk, they would not influence the witness, and they would not tamper with evidence, along with the conditions stipulated under Section 45 of the PMLA, is a restrictive clause on granting of bail. Upon the bail application being rejected by the Delhi High Court, the Accused preferred the instant appeal the Supreme Court.

The Supreme Court took into consideration the fact that the trial of both the scheduled offence (being the offence under the PCA) and the offence under PMLA will take a considerable period of time, since they involved around 493 witnesses as well as huge documentations. Acknowledging the remote possibility of the trial taking place in the near future, Justice Gavai was of the sound reasoning that the continuous detention of the accused will only render to be deprivation of his right to speedy trial and right to liberty, which are “sacrosanct rights”. The Court relied upon the landmark judgment ofGudikanti Narasimhulu & Ors v. Public Prosecutor₃, whereby it was held that the objective to keep a person in judicial custodypending trial or disposal of an appeal is to secure the attendance of the prisoner at trial, and not as a form of punishment. Going by the said rationale, it was reiterated by Justice Gavai that incarceration before being pronounced guilty of an offence should not be a means of inflicting punishment on an accused without subjecting them to trial. Furthermore, the Court relied on Javed Gulam Nabi Shaikh v. State of Maharashtra and Anr.₄,wherein several landmark judgments were referred to and finally held that if the State or any prosecuting agency including the court has no wherewithal to provide or protect the fundamental right of an Accused to have a speedy trial as enshrined under Article 21, then the State or such prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious and that Article 21 of the Constitution applies irrespective of the nature of the crime. In light of the above guiding factors, the Supreme Court re-applied the triple test and opined that the Accused satisfies the conditions therein, and therefore granted bail. This judgment indeed echoes with the principle that denial of bail in such circumstances where trial is not likely to proceed, is nothing short of violation of Article 21 of the Constitution.

Case Study II – Senthil Balaji v. Deputy Director of Enforcement Directorate

While the first case reiterated a general well-settled, yet often in-practice breached upon principle, the subsequent case adjudged by the Supreme Court considered the importance of grant of bail to an undertrial prisoner, specifically in the light of rigid clauses on grant of bail contained in substantive statutes, for instances such as in offences under PMLA, UAPA, NDPS and the like.

In Senthil Balaji v. Deputy Director of Enforcement Directorate₅, the Supreme Court, while granting bail to the accused who was an ex-transport minister of Tamil Nadu, facing incarceration on allegation of collecting large amounts by promising job opportunities to several persons in various positions in the transport department, upheld that if the Judges are of the satisfaction that there is no possibility of a trial concluding within a reasonable time, then there exists no bar to exercise the powers of a constitutional court to grant bail, on grounds that there is a violation of Part III of the Constitution, notwithstanding any statutory provisions. Here also, the Accused was booked for commission of offence under the PCA, which formed the scheduled offence under the PMLA, thereby leading to registration of crime by the ED as well, under the latter statute. Even though the Court was of the opinion as to the existence of a prima facie case against the Accused, that was considered as no bar to grant bail, given that the trial of the scheduled offence had not even reached the stage of framing of charges. It was observed by Hon’ble Justice Abhay S. Oka that unless and until the trial in the scheduled offence reaches a conclusion, the trial under the PMLA also would not even commence and since the existence of a scheduled offence is a sine qua non for alleging proceeds of crime constituting an offence under the PMLA, any further detention of the accused by the enforcement directorate in such remote possibility of commencement of trial in the near future was violative of fundamental rights of the Accused. Furthermore, Justice Oka delved into the impact of rigid clauses in statutes such that of PMLA, UAPA, etc which discourages courts from granting bail and went on to interpret that such rigid clauses necessarily contemplate a speedy trial of the impugned offences, as otherwise, such stringent rules become a tool to punish the accused even before a conviction upon trial.

The Court, after placing reliance on Manish Sisodia₆ and Union of India v. K.A.Najeeb₇, held that the requirement of expeditious disposal of cases and trial must be read into such statutes providing for higher threshold in grant of bail, as inordinate delay in the conclusion of trial and higher threshold for grant of bail cannot go together. Once again relying upon the principle of bail is rule, and jail is exception, the Court interpreted Section 45 (1)(ii) of the PMLA, to render that such stringency in granting of bail does not confer an unfettered power on the hands of State or the investigating agency to detain an accused for an unreasonable and uncertain period of time. Even though what is reasonable time depends upon a number of factors including the nature of offence, the minimum and maximum sentence prescribed for the offence, or a specification of outer limit in the relevant law for completion of the trial, and so on, in each of such scenarios, the constitutional courts can exercise their discretionary jurisdiction and issue prerogative writs in the event of violation of Part III of the Constitution.

Case Study III -- Arvind Kejriwal v. Central Bureau of Investigation

The third case Arvind Kejriwal v. Central Bureau of Investigation₈, is not merely an authority on bail jurisprudence, but also provides a much-required insight into the question of legality and necessity of arrest. Arising from the same allegations of corruption in the Delhi Excise Policy which implicated Manish Sisodia, the ex- chief minister of NCT of Delhi, Arvind Kejriwal was also booked by the Enforcement Directorate by exercising their purported powers under Section 19 of the PMLA. An interesting aspect in this case was that the Appellant was initially not named as an accused in the original case registered against various persons in 2022 under Sections 120B read with Section 477A of IPC and Section 7 of the PCA. It was only in March, 2024, the ED arrested the Appellant and soon thereafter the CBI also moved an application in June, 2024 before the Special Judge (PC Act) under Section 41A of the Code of Criminal Procedure, seeking to interrogate the Appellant, which was thereupon allowed. Having completed interrogation and examination, the CBI filed an application before the Special Court seeking permission to arrest the Appellant, which was allowed and in the meantime the bail granted to the Appellant in the ED matter was stayed by the High Court, thereby causing no hindrance to the arrest by CBI.

Before delving into the question of grant of bail to the Appellant, Justice Surya Kant in his judgment framed the legal issue whether the act of the CBI in filing an application before the Special Court and consequently arresting the accused was in compliance with the mandates of Section 41A and 41(1)(b) of the Code of Criminal Procedure. The High Court of Delhi had upheld the legality of the arrest for the reason and the accused was denied bail considering the complexity of the facts and materials on record, which in the opinion of the High Court called for a more comprehensive determination of his role in the alleged conspiracy. Moreover, the High Court also denied to exercise its concurrent jurisdiction under Section 439 Cr.P.C., in light of the chargesheet being submitted by the CBI constituting a change of circumstance and thereby directed the accused to approach the Court of the Sessions Judge.

The Supreme Court undertook an interesting interpretation of Section 41A in light of the facts of the case. The question that arose was whether the CBI was justified in filing an application before the Special Court under the pretext of Section 41A to interrogate the accused, and further, whether the subsequent arrest of the accused was legal, when Section 41A(3) mandates that no arrest be made if the person complies with the notice issued under that provision. Justice Surya Kant held that the intention of Section 41A is only to ensure an individual’s appearance through the issuance of a notice, and that it does not outline any express procedure to be undertaken where the individual in question is already incarcerated. In his opinion, since the Court acts as the guardian of an undertrial during judicial custody, a possible means to ensure proper compliance with Section 41A would be by obtaining the Court’s permission. Further, with regard to Section 41A(3), it was observed that the provision has a vital takeaway. While compliance with the notice generally shields an individual from arrest, the police may still proceed with the arrest if they conclude that it is essential and provide duly recorded reasons for doing so. This means, it is not a case of absolute restrain on arrest. In the instant case as well, following the interrogation, the CBI made an application to the Trial Court seeking permission to arrest the Appellant on grounds that the Appellant had allegedly given evasive responses during questioning and that custodial interrogation was necessary. Hence, it was held that Section 41A(1), when read with Section 41A(3) Code of Criminal Procedure, does not impose an absolute prohibition on the arrest and the legality of the same was upheld.

The Court also dealt with the concept of “why arrest” or the “necessity of arrest”, which was the moot point in the case of Arnesh Kumar v. State of Bihar₉, wherein it was held that the police officer before arrest must put a question to himself, as to why arrest and whether it is really required and it is only after an answer is found to the said question, the police officer must exercise the power to arrest. The rationale to cloth an arrest with such legality is because arrest causes significant damage to an individual in the form of humiliation and curtailment on freedom. An individual who is subjected to arrest is scarred for eternity – with his reputation torn and his emotional wellbeing affected. Hence, arrest, is a tool at the hand of the police which has the power to cause grave consequences on an individual, thus necessitating the need for creating checks and balances in the exercise of power to arrest.

While Justice Kant upheld the legality of the arrest on the above grounds, he was also of the opinion that continued incarceration for an extended period pending trial would infringe upon established legal principles and the Appellant’s personal liberty, traceable to Article 21 of the Constitution and therefore granted bail. However, Justice Ujjal Bhuyan authored a separate judgment to hold that the arrest was tainted with illegality and that the Appellant’s incarceration was uncalled for, thereby holding them as reasons not to deny bail to the Appellant. One of the key observations made by Justice Bhuyan was regarding the timing of the arrest. The arrest of the accused by the CBI was made only after he was granted regular bail in the connected ED case, that too with a delay of 22 months from the date of registration of crime, raising serious concerns as to whether the arrest met the threshold of necessity. Justice Bhuyan observed that such delay inherently suggests a lack of urgency or compelling grounds, thereby failing to satisfy the standard of necessity that must guide any arrest under the constitutional and statutory scheme. Further, he scrutinized the reasoning offered by the CBI for the arrest and held that it can in no event be justified to arrest merely because an accused does not respond to questions in the manner the investigating agency expects. He firmly rooted this observation in the constitutional protection under Article 20(3), which enshrines the right against self incrimination. In light of these findings, Justice Bhuyan concluded that the grounds cited for the arrest were untenable, and continuing the Appellant’s detention would amount to a travesty of justice.

Furthermore, Justice Bhuyan also drew the necessary distinction between the “need to arrest” and “power to arrest”. It was reiterated that merely because an investigating agency has the power to arrest, it does not necessarily mean that it should arrest such a person. This was so inferred in light of Joginder Kumar v. State of U.P.₁₀, which examined the interplay of investigation and arrest, whereby the Supreme Court held that no arrest can be made because it is lawful for the police officer to do so. It was held that the mere existence of the power to arrest is distinct from the justification for its exercise. Arrest and subsequent detention in police custody can inflict serious and irreparable damage to an individual’s reputation and self-worth and thus, no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It is essential—both for the protection of a citizen’s constitutional rights and in the interest of responsible policing—that no arrest is carried out without the officer having formed a reasonable satisfaction, following some investigation, regarding the genuineness and bona fides of the complaint, as well as the accused’s complicity in the offence. Ultimately, also relying on Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)₁₁, Justice Bhuyan emphasized on the duty of investigating officers to conduct the investigation in such manner which will draw a just balance between a citizen’s right under Articles 19 and 21 and the expansive power of the police to make investigation.

While deliberating on the issue of bail, Justice Bhuyan also examined the legal significance of a change in circumstance, particularly in light of the filing of a charge-sheet, and addressed whether the High Court had erred in not exercising its concurrent jurisdiction. Justice Bhuyan affirmed that the filing of a charge-sheet does indeed constitute a change in circumstance, as it equips the court with substantial material to form a prima facie assessment on several key factors, such as the gravity of the offence, the extent of the applicant’s involvement, the background and vulnerability of witnesses, the likely duration of the trial based on the number of witnesses, and the broader societal impact of granting or denying bail. However, he raised his reservations on adopting a straitjacket formula wherein the filing of a charge-sheet becomes the sole or determinative criterion in bail considerations and opined that each case, may be evaluated on its individual merits. It was further underscored that an undertrial should ordinarily first approach the Trial Court for bail as such an approach not only affords the accused an opportunity for initial relief but also preserves the High Court’s role as a forum for review and correction. It was also emphasized that since bail is intrinsically linked to the right to personal liberty, such applications should be decided expeditiously and substantively, rather than being hindered by procedural formalities or unnecessary jurisdictional deference.

The Relevance of Precedents

An analysis into the three judgments render that the guiding factor behind all the decisions and the ultimate discretion to grant bail, were based on the necessity to protect the fundamental right of liberty, life and speedy trial of an Accused. Time and again, the Courts have upheld the importance of respecting the sacrosanct rights, while adjudicating upon the application for bail of an undertrial. The judgment of Gudikanti Narasimhulu₁₂ is often considered as the most celebrated precedent, wherein the legal luminary Justice Krishna Iyer had laid down the law that in no event can withholding of bail be resorted to as a means of punishment and that the objective behind bail is to only secure the attendance of the prisoner at trial. Justice Krishna Iyer also pointed out at how the trial courts and high courts act in breach of the principle “bail is rule, jail is an exception”, while playing it safe in matters of grant of bail, which leads to floodgate of applications seeking bail, even in open and shut cases.

Yet another early decision of the Apex Court is that of Gurbhaksh Singh Sibbia v. State of Punjab₁₃, which although dealt with the contours of granting anticipatory bail, also laid down certain basic principles with respect to bail under Section 438 of the Cr.P.C. as well. Citing the reliance of much older case laws from the early 20th century courts of the country the Supreme Court paved way into the contemporary bail jurisprudence that is followed till date. Reliance  was placed on Nagendra Nath Chakrabarthi v. King Emperor₁₄, wherein the Calcutta High Court held that the object of detention is to secure the attendance of the accused at the trial and that the proper test to be applied in determining whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. In K. N. Joglekar v. Emperor₁₅ , which is also referred to as the Meerut Conspiracy Case, the High Court of Allahabad held that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion by Courts in granting bail, except for the rule that the discretion should be exercised judiciously. Similarly, in Emperor v. H. L. Hutchinson₁₆, it was observed by the High Court of Allahabad, that the only legitimate purposes to be served by keeping a person undertrial in detention are to prevent repetition of the offence with which he is charged, where there is apparently danger of such repetition, and to secure his attendance at the trial. Noting the above precedents, the Supreme Court in Gurbhaksh₁₇ noted that the provisions of the Cr.P.C. rightly give the inference that bail is rule and jail is an exception, and that a presumably innocent person must have his freedom to enable him to establish his innocence. While Gudikanti Narasimhulu₁₈ and Gurbhaksh Singh Sibbia₁₉, still hold the field as the primary sources for bail jurisprudence, several recent case laws have also been of utmost relevance when it comes to the question of grant of bail. For instance, with respect to grant of bail for offences under statutes which contain restrictive/conditional clauses on bail, the case of Union of India v. K A Najeeb₂₀ is a frequently relied upon precedent. In this case, the Appellant was charged under the rigorous provisions of UAPA, which contains statutory embargo on bail as per Section 43D(5). The Appellant had already undergone 5 and half years of incarceration and it was argued that the protracted incarceration violates the Accused’s right to speedy trial and access to justice. Placing reliance on the much-celebrated Shaheen Welfare Association v. Union of India₂₁, and Babba alias Shankar Raghuman Rohida v. State of Maharashtra₂₂ it was urged that in such situations where there is an evident violation to the Accused’s fundamental right, the Constitutional Courts could exercise their powers to grant bail, regardless of limitations specified in the special statutes. The Supreme Court, confirming the reliance on the above precedents, upheld that undertrials cannot indefinitely be detained pending trial. The presence of statutory restrictions, in the opinion of the court, did not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution and the court vouched for harmony between the restrictions under a Statue and the powers exercisable under Constitutional Jurisdiction. The ratio laid down in K.A. Najeeb₂₃ was in its entirety made applicable in the cases of Manish Sisodia₂₄ and Senthil Balaji.₂₅

Another recent judgment of the Supreme Court which highlighted the harmony between enforcement of criminal law and order and protection of fundamental rights of the accused was that of Arnab Ranjan Goswami v. Union of India₂₆. The Supreme Court has held that the courts should be alive to both ends of the spectrum: the need to ensure proper enforcement of criminal law on the one hand, and the need to ensure that the law does not become a ruse for targeted harassment on the other hand.

These judgments, along with several others which lay down more or less the same principles of law, lead us to an important question: where do courts draw the line when it comes to denial of bail and protecting the right of personal liberty and speedy trial of an accused.

Conclusion : Denial of bail v. protection of Fundamental rights

In conclusion, the trajectory of bail jurisprudence in India reflects a conscious and evolving effort to balance the denial of bail with the constitutional mandate of protecting the fundamental rights of the accused. Bail is no longer seen merely as a procedural aspect of criminal law but as a vital safeguard of personal liberty, deeply intertwined with the right to a fair trial under Article 21 of the Constitution, which is a “sacrosanct right”. From Gudikanti Narasimhulu₂₇ to Manish Sisodia₂₈, the courts have progressively underscored that bail is a constitutional imperative and not a matter of judicial indulgence.

The Supreme Court’s reiteration that “bail is the rule and jail is the exception” is not a mere slogan but a legal principle grounded in the presumption of innocence, the need for fair and expeditious trials, and the protection of human dignity. The decisions discussed as above have become significant precedents, prompting courts across the country to scrutinize the necessity of arrest and the feasibility of timely trials before depriving a person of his personal liberty. For instance, the High Court of Kerala in several occasions have quoted the ratios in the above decisions and diligently exercised its discretion in grant of bail, even in case of offences which come under statutes containing restrictions on bail. One such example is the case of Rahul Rai v. State of Kerala₂₉, wherein, the accused was booked under Section 22(c) & 8(c) r/w 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for having been found in possession of Psilocybin contained magic mushroom along with other substances. While the moot point was whether ‘Magic Mushroom’ constituted a scheduled narcotic/psychotropic substance under the Act, which was answered in the negative, the Court also relied upon Manish Sisodia₃₀ to hold that once a case is made out for grant of bail, the court cannot decline to grant bail, and if so denied, then that shall be a violation to right guaranteed under Article 21 of the constitution.

As the Supreme Court highlighted in Arnab Goswami₃₁, the role of the judiciary is to harmonize the interests of justice with the fundamental rights of individuals. The consistent judicial emphasis on liberty, fairness, and dignity calls for a vigilant and principled approach from all courts. A justice system that upholds these values not only protects the rights of the individual but also strengthens public faith in the rule of law. Therefore, in a constitutional democracy, the denial of bail must always be the exception, justified by compelling reasons, and never at the cost of personal liberty without due cause.

Foot Notes

1. 1977 KLT OnLine 1158 (SC) = AIR 1977 SC 2447.

2.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053.

3.  1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429.

4.  2024 KLT OnLine 1744 (SC) = (2024) 9 SCC 813

5.  2024 KLT OnLine 2363 (SC) = AIR 2024 SC 4760.

6.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053.

7.  2021 (4) KLT SN 49 (C.No.32) SC = 2021 (1) KLT OnLine 1013 (SC) = AIR 2021 SC 712.

8. 2024 KLT OnLine 2325 (SC) = (2024) 9 SCR 683.

9. 2014 (3) KLT 143 (SC) = (2014) 8 SCC 273.

10. 1994 (1) KLT 919 (SC) = (1994) 4 SCC 260.

11.2010 (2) KLT OnLine 1103 (SC) = (2010) 6 SCC 1.

12. 1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429.

13.  1980 KLT OnLine 1004 (SC) = AIR 1980 SC 1632.

14.  AIR 1924 Cal 476.

15.  AIR 1931 All 504.

16.  AIR 1931 All 356.

17. 1980 KLT OnLine 1004 (SC) = AIR 1980 SC 1632.

18. 1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429..

19. 1980 KLT OnLine 1004 (SC) = AIR 1980 SC 1632.

20. 2021 (4) KLT SN 49 (C.No.32) SC = 2021 (1) KLT OnLine 1013 (SC) = AIR 2021 SC 712.

21. 1996 (1) KLT OnLine 987 (SC) = AIR 1996 SC 2957.

22. 2005 (2) KLT OnLine 1119 (SC) = (2005) 11 SCC 569.

23. 2021 (4) KLT SN 49 (C.No.32) SC = 2021 (1) KLT OnLine 1013 (SC) = AIR 2021 SC 712.

24. 2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053.

25. 2024 KLT OnLine 2363 (SC) = AIR 2024 SC 4760.

26. 2020 (6) KLT OnLine 1108 (SC) = (2021) 2 SCC 427.

27. 1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429.

28.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053

29.  MANU/KE/0067/2025.

30.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053 .

31.  2020 (6) KLT OnLine 1108 (SC) = (2021) 2 SCC 427.