Reviving a Forgotten Compass: Justice V.R. Krishna Iyer’s “Bail is the Rule” Doctrine and CJI B.R. Gavai’s Contemporary Reaffirmation
Liberty lies at the very heart of the Indian Constitution. Article 21 promises that no person shall be deprived of life or personal liberty except according to procedure established by law. But in the real world, Indian jails are filled with undertrial convicts who were put in jail not because they were convicted, but because of delay in the system and judicial conservativeness. Against this background, Chief Justice of India B.R. Gavai, in his recent speech at the 11th Justice V.R. Krishna Iyer Memorial Lecture, presented a grim reality: the constitutional principle that "bail is the rule and jail is the exception" has in great measure been forgotten by the courts in the recent past. His words are not merely commentary but a reaffirmation of Justice Iyer's path-breaking jurisprudence, which revolutionised the face of Indian criminal law and accorded personal liberty its due place in courtroom debates.
Justice Krishna Iyer's Visionary Transformation
Justice V.R. Krishna Iyer, perhaps the greatest of Indian judicial history's jurists, never viewed law as a purely formalistic and mechanical phenomenon, but as one of social justice. His decisions were profoundly humanist, humane in spirit, and meant to empower the poor and underprivileged. In his rulings, Justice Iyer demanded that individual freedom was not to be surrendered at the altar of suspicion or technicality of process. His decisions in the cases of Gudikanti Narasimhulu and Moti Ram revolutionized bail jurisprudence by contending that bail conditions must not be so restrictive as to amount to denial of bail itself. He emphasized that liberty must be protected even at pre-trial phases, especially when the accused is yet to be determined guilty.
Justice Iyer's vision went beyond bail. In construing Article 16(4) in State of Kerala v. N.M. Thomas, he avoided the traditional construction that it was a mere exception to Article 16(1). Rather, he interpreted it as an expansion of the right to equality with the goal of substantive fairness and equal opportunity for historically disadvantaged classes. His vision was forward-looking—he viewed the Constitution as a living document designed to usher in socio-economic transformation.
The Drift Towards Procedural Formalism
Indian judicial thinking, over the last two decades, has been marked by a drift towards excessive proceduralism in special law cases such as those under the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities (Prevention) Act (UAPA). The statutes, with their austere bail clauses and reverse onus provisions against the accused, have resulted in courts being overly risk-averse and conservative. The result has been an erosion of the principle that bail should be the default. Trial courts and even High Courts have often denied bail without sufficient justification, equating accusation with guilt, and liberty with risk. This regression from constitutional values is what CJI Gavai sought to address in his speech.
CJI Gavai’s Reassertion of Bail Jurisprudence
Chief Justice Gavai observed the alarming trend and mentioned recent orders where he and his bench tried to restore the lost principle. In the case of Prem Prakash, Manish Sisodia, and K. Kavitha on bail, he ruled that even in bail cases under strict laws like the PMLA, the principle of presumption of innocence shall apply until established to be otherwise. He reminded the judiciary that the criminal justice system must lean in favor of liberty and that long pre-trial detention without conviction amounts to punishment before the verdict. His observations criticize the “play safe” approach where lower courts prefer to deny bail to avoid backlash, instead of upholding constitutional rights.
CJI Gavai’s decisions are not isolated acts but deliberate efforts to restore balance between individual liberty and state power. By repeating that courts must not insist on stringent or prohibitively expensive terms of bail, he reaffirmed Justice Iyer's position that protective and curative conditions of bail are to be preferred over punitive ones. His invocation of investigatory fairness, especially in politically charged cases such as Sisodia and Kavitha's, emphasizes the judiciary's responsibility to be a check against executive excesses and not a willing approver of arrest.
Directive Principles and Fundamental Rights: Constitutional Harmony of Justice Iyer
One of the themes of Justice Iyer's jurisprudence that CJI Gavai was celebrating was his method of balancing Directive Principles of State Policy with Fundamental Rights. Courts had insisted hitherto that in case of a clash between the two, Fundamental Rights would take precedence. But after the landmark judgment in Kesavananda Bharati, and even more so after the clear thinking of Justice Iyer, the judiciary realized that both of them are a crucial part of the constitutional paradigm. Justice Iyer believed that Directive Principles and Fundamental Rights are two sides of the same coin—intended to be harmonious with each other to achieve the transformational objectives of the Constitution. He opined that constitutional interpretation must be in harmony with the aspirations of the people, especially those pushed to the margin.
Death Penalty, Gender Equality, and PIL: Enlarging the Concept of Justice
Justice Iyer was also among the earliest to oppose the death penalty in India. Moved by his own experience as a young attorney who witnessed an innocent man being put to death, he decided in such cases as Ediga Anamma and Rajendra Prasad that capital punishment was the exception, and each case had to factor in reform and rehabilitation. This sort of humanitarian thought continues to shape ongoing debates regarding abolition of the death penalty in India.
CJI Gavai also remembered the passion of Justice Iyer for gender justice. He held that the discriminatory rules against women officers in the Indian Foreign Service were unconstitutional and made an audacious intervention regarding gender equality. Justice Iyer's idea of fairness was not limited to case law jurisprudence; it was a broad commitment towards keeping institutional bias out and constitutional morality in.
Among the most revolutionary developments for which Justice Iyer laid claim to himself was bringing about a shift of Public Interest Litigation (PIL) from being an instrument formalistic to that of social justice. He overcame the technical barrier of locus standi and opened the doors of the courts to commoners and even convicts. By regarding prison letters as writ petitions—as in Sunil Batra—he gave voice of opportunity to the voiceless and brought justice within reach of the most marginalized sections of society. His style charted a new course for judicial activism and made the Indian Supreme Court a global leader in rights-based adjudication.
A Call to Constitutional Conscience
CJI Gavai’s lecture was not just a tribute to Justice Iyer’s legacy but a personal reflection. He called Justice Iyer his guiding star and admitted that in his 22 years as a judge, he tried to live by those ideals. Every time a court prioritizes human dignity over legal technicalities, every time a judgment extends the protective arms of fundamental rights to the disadvantaged, Justice Krishna Iyer’s legacy is not only remembered—it is lived.
The reminder that "bail is the rule" must not remain a slogan lost in textbooks and nostalgic lectures. It must guide day-to-day judicial thinking in trial courts and High Courts. In a time when personal liberty is overwhelmed by populist penal compulsions and national security rhetoric, the judiciary must find sustenance in constitutional commitment. Justice Iyer’s philosophy and CJI Gavai’s reaffirmation of it provide a clear constitutional compass: law must serve the people—not control them.
References
- LiveLaw, “Krishna Iyer’s Principle ‘Bail Is The Rule’ Was Somewhat Forgotten…” (7 Jul 2025)
- New Indian Express, “Justice Krishna Iyer’s Rulings Were Moral Compasses: CJI Gavai” (7 Jul 2025)
- Hindustan Times, “CJI Gavai Flags Drift from ‘Bail Is Rule & Jail the Exception’” (7 Jul 2025)
- Bar & Bench report (7 Jul 2025)
