‘Bail, not jail’: What SC may consider as it hears Nupur Sharma prophet row plea today

Last Monday, a Supreme Court bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh felt the need to echo Justice VR Krishna Iyer’s 1977 judgment that arrest was a draconian measure resulting in curtailment of liberty and should be used sparingly.

In 1977, when Justice VR Krishna Iyer of the Supreme Court granted bail to a 27-year-old man from Rajasthan in a two-page order, little did he know that he had penned down 12 words which would go on to become a landmark principle of criminal jurisprudence in India. “The basic rule may perhaps be tersely put as bail, not jail,” Justice Krishna Iyer had said. This has since then been popularly paraphrased as the rule of “bail, not jail”.

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Last Monday, a Supreme Court bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh felt the need to echo Justice Krishna Iyer’s words from 45 years ago. The bench said that arrest was a draconian measure resulting in curtailment of liberty and should be used sparingly.

The similarity between the 1977 judgment and the 2022 judgment is apparent. Though over four decades apart, both judgments from India’s highest court reiterate the same principle — that the liberty of an individual is sacred and that this fundamental right should never be violated until absolutely necessary.

When Nupur Sharma first approached the Supreme Court over a month ago, asking for the FIRs against her to be clubbed together, she did not anticipate the barrage of criticism that was about to come her way. Justice Surya Kant and Justice JB Pardiwala left no hold barred in criticising Nupur Sharma and her remarks on Prophet Mohammed, going to the extent of asking why she hadn’t been arrested yet.

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The bench had said that Sharma’s “loose tongue had set the country on fire” and that she was “single-handedly responsible for what was happening”. They had also gone on to say that Nupur Sharma ought to apologise to the whole country on national TV. Though these observations were reported across media platforms, none of the observations actually made it to the order passed by the court, which, in two lines, dismissed the petition as withdrawn.