‘Sword of Damocles’ bail and personal liberty

Complete confusion and controversial points remain when it comes to constitutional issues on bail and arrest. In recent times, the Supreme Court dealt with many bail cases but did not create a clear rule about bail. Instead, its approach developed gradually through different cases. It repeatedly spoke about the importance of personal liberty, long delays in trials, and the problem of people remaining in jail for years before their guilt is proven. This serious issue on the fundamental right is yet to be settled.

Bail with conditions:

The Mahmudabad v State of Haryana is an example. Ali Khan, an associate professor at Ashoka University, was arrested over two social media posts related to “Operation Sindoor.” The FIRs alleged that his posts could threaten public order and national security.

When the matter came before the Supreme Court in May 2025, the Bench did not stop the police investigation. Instead, it directed that a Special Investigation Team (SIT) should examine the case carefully, especially the language used in the posts.

At the same time, the court granted conditional interim bail to the professor. He was forbidden from writing or speaking publicly about the subject of the FIRs, terrorists and the armed forces’ response.

Through this order of 21 May, the court tried to balance two concerns: protecting the individual’s temporary liberty, and at the same time, allowing the investigation to continue. However, there was no conclusive decision on whether the speech itself was lawful.

Bail in anti-conversion law cases:

A similar cautious approach appeared in cases involving state anti-conversion laws. In Aman Siddiqui alias Aman Chaudhary v State of Uttarakhand, the accused was arrested after objections were raised about his interfaith marriage, despite the consent of both families.

Setting aside the Uttarakhand High Court’s decision denying bail, the apex court bench observed that the state had no reason to object when two adults had willingly chosen to live together. He was granted bail on 19 May.

Another related case exposed how procedural mistakes can affect personal liberty. In Aftab v State of Uttar Pradesh, on 25 June, although the Supreme Court had granted bail in April, the accused was not released for almost a month. Authorities claimed that the bail order did not mention a particular sub-clause of the Uttar Pradesh anti-conversion law.

The SC said it was a “travesty of justice” that a person remained in jail simply because a subsection number was missing in the order. Calling the detention “hyper-technical and irrelevant,” the Court ordered compensation of ₹5 lakh for the 28 days Aftab spent in custody despite having bail.

At the same time, the broader constitutional challenge to anti-conversion laws is still pending before the Court in Citizens for Justice and Peace v State of Uttar Pradesh. In that case, the Court will decide whether such laws violate fundamental rights like privacy, personal liberty, freedom of religion, and the right to choose one’s partner.

Bail in economic offences:

In another case involving alleged cryptocurrency fraud, the court again focused on prolonged detention. In Subhelal v State of Chhattisgarh, an alleged crypto investment scheme fraudster was kept in custody for over nine months. The Supreme Court noted that the chargesheet had been filed but the trial was moving slowly. The apex court has been insisting that trials should not be delayed indefinitely while the accused remains in jail.

The Court also showed that bail orders must be properly reasoned and fair to victims. In Victim X v State of Bihar, the Supreme Court, on 21 July, cancelled bail granted by a High Court in a case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

The SC pointed out that the victim had not been heard before bail was granted. It also noted that the accused held a position of influence as a person in charge of a shelter home in Bihar and faced serious allegations of trafficking and sexual exploitation of residents. Because these factors were ignored earlier, the Supreme Court set aside the bail order.

A similar legal shortcoming was observed in the Netsity Systems v State (NCT of Delhi). The Supreme Court overturned a Delhi High Court decision granting bail.

Speeding up bail decisions:

Another important development came in Anna Waman Bhalerao v State of Maharashtra on 12 September. Here, the issue was anticipatory bail in a dispute involving alleged forged land records. Although the Supreme Court ultimately refused anticipatory bail, it used the case to highlight a larger problem-bail applications remain pending for years while courts keep extending interim protection. The judges warned that matters affecting personal liberty should not hang indefinitely over a person’s head like a “sword of Damocles.” They issued directions for faster disposal of bail and anticipatory bail applications.

In Sagar v State of Uttar Pradesh, the High Court had granted bail to an accused simply because a co-accused had already been released. The SC observed on 28 November that courts must examine the specific role of each accused person and determine whether their situation is truly comparable.

Anticipatory bail-SC/ST Act

In the Kiran v Rajkumar Jivraj Jain case on 1 September, the allegations involved that the accused had assaulted and humiliated the complainant using a caste-based slur (the SC/ST (Prevention of Atrocities) Act). A three-judge bench ruled that when a FIR clearly shows a prima facie offence under the Act, the statutory bar on anticipatory bail applies.

Preventive detention and protests:

Environmental activist Sonam Wangchuk was detained under the National Security Act after protests in Leh demanding constitutional safeguards for Ladakh turned violent.

He was moved to Jodhpur Central Jail, far from Ladakh.

His wife challenged the detention before the Supreme Court, questioning both the grounds and the use of preventive detention in a protest situation. The Court issued notice to the Union government and allowed amendments to the petition. Wangchuk was released after the matter reached the Supreme Court.

The Khalid case:

Perhaps the most closely followed bail hearing of 2025 was Umar Khalid v State (NCT of Delhi). Umar Khalid was in jail since September 2020 in connection with the alleged conspiracy behind the 2020 Delhi riots.

By the time the case reached the Supreme Court, he had spent more than five years in custody without trial. During hearings between October and December, the Delhi police argued that the riots were planned and not spontaneous. They relied on speeches, witness statements, call records, location data, and WhatsApp messages to suggest Khalid played a coordinating role in protests and road blockades.

Khalid’s lawyers argued that merely being part of WhatsApp groups did not prove participation in a conspiracy. Khalid’s bail plea was rejected by the Supreme Court in January this year under the UAPA standard.

(The writer is Advisor, School of Law, Mahindra University, Hyderabad)