Recently the Supreme Court took suo motu cognisance of a case concerning certain unlawful bail conditions being imposed by the Orissa High Court and few trial courts. The matter was registered as In Re: Condition Being Imposed While Granting Bail By High Court of Orissa and District Courts in the State of Odisha and Ancillary Issues (SMW(Crl) 2/2026).
On May 28, 2025, the Orissa High Court granted bail to an accused who was booked for protesting against a bauxite mining project. While granting bail, the High Court imposed a condition on his bail that requires the accused to clean the premises of a Police Station every morning for two months. The said order notes as follows-
“The petitioner shall clean the premises of the Kashipur Police Station in the morning hour (between 6.00 AM to 9.00 AM) for two months from the date of his actual release in the aforesaid case. The IIC of the Kashipur Police Station shall provide the cleaning articles like broom, phenyl and other items to the accused so that he can clean the said premises. Violation of any of the above conditions shall entail cancellation of bail.”
Reportedly, this was not an isolated incident. At least eight such orders were issued against the anti-mining protesters in Orissa between May 2025 and January 2026, out of which seven were passed by the Rayagada District Court and one by the High Court itself. Some reports further reveals that the issue is much more broader and highlights that at least 50 such orders were previously passed by the Orissa High Court where similar directions to clean police stations, temples, hospitals, village roads, local ponds, and even bank branch were given while granting bail in a variety of matters ranging from theft to murder.
The Purpose of Bail and Why it Matters
To understand the broader implications of these orders, it is relevant to be clear about what is the actual purpose of bail. It is a trite law that bail is not an instrument of rehabilitation or imposing moral correction or community improvement tasks on accused persons. In the very well settled understanding of criminal jurisprudence, the purpose of bail is procedural and narrow that is to secure the presence of the accused at the trial while preserving their liberty owing to the presumption of innocence.
The Supreme Court has been consistent with the aforesaid proposition. In State of Rajasthan v. Balchand [(1977) 4 SCC 308], Justice V.R. Krishna Iyer articulated the now familiar principle that “Bail is the rule, jail is the exception”. This principle has been repeatedly reaffirmed in a plethora of judgments and most comprehensively in Satender Kumar Antil v. CBI [(2021) 10 SCC 773] where the court emphasised that bail conditions must not be excessive or impossible to comply with and that personal liberty is the constitutional default and not an indulgence granted on good behaviour. All the conditions that flow from bail such as appearing before the I.O. when called upon, not influencing the witnesses or tampering with evidence, surrendering a passport, they are all based on a common logic and purpose that is to ensure the integrity of the trial process and to secure the presence of the accused and nothing more.
However, cleaning a police station, sweeping a temple, or mopping a bank branch none of these conditions bears any rational nexus whatsoever with the settled purpose of bail. They do not prevent the accused from absconding, they do not protect the witnesses or evidence or ensuring smooth conduct of the trial. These conditions are both in legal character and practical effect, sentences imposed on persons who have not yet been convicted of any offence.
Invisible Sentencing without Conviction: The Statutory Trap
Section 4 (f) of the Bharatiya Nyaya Sanhita (BNS) does recognise ‘Community Service’ as a form of a punishment but this is only available to a court after conviction and as a sentencing option, not as a condition that can be attached to bail. Further, Section 23 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) also provides community service as a form of punishment. Explanation of the same defines community service as under-
“Community service shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.”
In a recent case of Ajin KV v. State of Kerala, the Kerala High Court explicitly clarified this position and held that community service is a penal provision reserved for convicted persons and cannot be borrowed and prescribed as a bail condition for undertrials. But the Odisha orders entirely ignored this and went ahead to effectively impose a criminal sentence, compelling labour at a state institution, at a fixed daily time, for a fixed duration on persons whose guilt is yet to be established. The legal framework simply does not permit this. There is no provision in the BNSS whether under Section 480 governing grant of bail in non-bailable offence, Section 483 governing the powers of High Court and Sessions Court in grant of bail, or anywhere else that authorises courts to impose such labour as a condition for bail.
Additionally, there is a constitutional bar against it. Article 23 of the Constitution explicitly prohibits forced, unpaid, or compelled labour. Now whatever label a court attaches to such a direction but requiring an accused person whose guilt is yet to be established to perform physical labour at a state institution, under the threat of losing their liberty is compelled labour. The fact that such orders originates from a court does not in any manner immunises it from this constitutional scrutiny.
Judicial discretion in bail matters is not unbounded. The Supreme Court has repeatedly said that the discretion must be ‘Sound discretion guided by law’. The conditions imposed while grant of bail must bear a reasonable nexus to the objectives of bail. This is the boundary within which legitimate discretion operates.
Judicial Populism and The Theatre of Bail
When a court directs an anti-mining protester to clean the police station that once detained him, or orders a theft accused to scrub the temple where he allegedly committed theft, the Court is doing something more than applying law, it is in a sense, staging a moral lesson. These condition sends a message to the accused and to the community that the court is a dispenser of poetic justice, not merely procedural fairness. This is judicial populism. The use of judicial discretion to perform social authority rather than serving any legal purpose.
Judicial populism is not always loud or political. More often it operates quietly through such everyday orders that rarely attract any interference or scrutiny from the appellate courts. The language of such orders is deceivingly simple and even intuitive. Phrases such as “let him understand the consequences” or “let her face the consequences in public view” appears reasonable because they appeal more to common sense rather than legal principle. But that social instinct is not neutral and has no connection whatsoever with the proportionality to the crime, the limited purpose of bail, or even the fundamental rights of the accused person. Therefore, the line between exercising judicial power and exercising moral judgement starts to blur when social instinct start replacing legal reasoning and the risk of arbitrariness increases.
The Suo Motu Case and What the Court Must Address
The present matter goes beyond these specific orders under scrutiny and raises questions that requires comprehensive explanation. The Supreme Court should clearly define the permissible scope of bail conditions in clear and unambiguous terms along with the specific direction that the conditions attached to bail must bear some rational nexus to the purpose of bail and must not operate or resemble as any form of punishment.
Another equally important question is that why fifty such orders passed by the Orissa High Court went unchallenged for so long. This is not simply a question of an individual judicial error but points to a structural question. The question as to why manifestly illegal bail conditions go unchallenged especially when such bail conditions are imposed on persons belonging to marginalised communities who may not even have the access to legal resources or awareness to challenge such arbitrary orders.
Supreme Court’s intervention is indeed necessary and a good step in the right direction as these orders were not legally ambiguous, they were straightforwardly wrong both constitutionally and in terms of basic dignity that the court owed to the accused persons who were still innocent in the eyes of law. The purpose of bail is very specific that is to protect the liberty of the accused during trial. But that very purpose of bail is effectively defeated the moment such conditions for bail begin to resemble like punishment. Therefore, when courts turn bail conditions into the instruments of social punishment, they are not exercising power within law, they are exercising it against it.
The author can be reached via email at bhaskar139-21@mpdnlu.ac.in
