There are reasons for the lower courts’ timidity in granting bail. Since the High Courts have supervisory powers and control over lower courts, judges in the trial courts are apprehensive about how the High Courts may respond to their orders. Adverse comments and observations may affect their career. But even the High Courts are timid in granting bail. Some weeks ago, the Supreme Court wondered how the Delhi High Court stayed a trial court’s grant of bail to Chief Minister Arvind Kejriwal.
The High Court had described the grant of bail by the trial court a ‘’perverse order.’’ In another case, the top court had criticised the High Court for allowing a stay on bail to remain in force for a year.
While judges should overcome the sense of fear and apprehension, they should also show greater commitment to the idea that individual freedom is the basic right of a citizen. Chandrachud had made a ringing declaration of this principle when he said in a 2020 judgement that “deprivation of liberty even for a single day is one day too many” and called upon the courts to “ensure that they continue to remain the first line of defence against the deprivation of the liberty.’’