Certain cases bring out the difficulties of judicial decisions. The Allahabad High Court refused bail to a person accused of sharing a pro-Pakistan post on social media. Allegedly, besides pro-Pakistan slogans, it asked for support for the people across the border. According to the court, it was especially sensitive as it occurred just after the deaths at Pahalgam. This was particularly painful for national sentiments. The post itself disrespected the Constitution, which calls for respect of its ideals and institutions, for the national anthem, and the national flag. Every Indian citizen should uphold the unity, integrity and sovereignty of India. The post violated all these principles. The Allahabad High Court also said that anti-national acts such as this one are becoming routine because of the liberal and tolerant approach of the courts. This is where the difficulty comes in. One of the aspects of ‘liberal and tolerant’ approach is presumably the granting of bail. This has always been a contentious issue in Indian courts. While lower courts are usually miserly in granting bail, the higher courts, especially the Supreme Court, are more generous.

The Supreme Court has been emphatic about the statement that bail is the rule, jail the exception. Should a person satisfy all the conditions under the bail statute, bail cannot be withheld from him or her. Under Article 21 of the Constitution, liberty is a reigning principle. At different times, the Supreme Court has referred to the right to personal liberty and constitutional guarantees for a person under criminal jurisprudence. The Supreme Court has also laid down guidelines for the conditions of bail and said that each case should be considered on its own merit. This is the crux of the problem. The Allahabad High Court is referring to one ideal of the Constitution and the Supreme Court refers to another. It also acts accordingly by mentioning that bail is the rule and insists that bail applications be presented in time. There is also another issue here. ‘Anti-national’ is a broad term that is used to include a multitude of actions. There is a dark side to the term. It is urgent that a definition of the term be formulated again, especially because of the presence of social media and the culture of vocal nationalism. That would help remove ambiguities.