Orders granting bail should ordinarily not be front-page news. They should neither warrant opinion columns nor celebratory editorials. Bail, not jail, is the default rule for undertrails and such orders ought to be routine. Yet the judgments of the Delhi high court granting bail to natasha narwal, devangana kalita and asif iqbal who are accused in a conspiracy related to the riots in northeast Delhi last year, are seminal. The judgment is also a timely reminder that the purpose of a bail hearing in criminal cases is modest to assess whether the accused can be set free till the trial begins, without prejudicing the trial itself. The judges were perceptive in noting that with second wave of the pandemic and the slow functioning of judicial institutions, their trial is likely to be further delayed. The process of waiting in jail for the trial to begin cannot become their punishment, especially as they were neither flight risks nor habitual offenders. The judgment has widely been hailed as a flg-bearer of democracy. This praise is well-deserved. But it would be myopic to celebrate it without introspecting how we got to a place where routine bail orders are now causes for celebration. This is a direct consequence of government lawyers vigorously opposing bail even in innocuous cases, presumbaly under instruction of their clients. If lawyers of repute bearing a duty to uphold the law as officers of the court try to twist the meaning of terrorism and distort it out of shape to oppose bail, the rule of law is on thin ince. Lawyers take such chances because courts themselves have been inconsistent in the past. In this case itself, the lower court had earlier denied bail on specious grounds; in the case of Safoora Zargar, a MPhil student jailed for making a speech against CAA, the judge intially denied bail saying that she was playing with the embers and couldn't blame the wind for starting a fire.
