Constitutional Dilemma in the Delhi High Court Order
The recent order of the Delhi High Court suspending the sentence of the convicted accused in the Unnao rape case has reopened a persistent constitutional dilemma: how should courts balance the liberty of a convict pending appeal with the survivor’s right to safety, dignity, and meaningful justice? The discomfort generated by this decision does not arise merely from the facts of the case, but from the uneasy coexistence of two competing claims under Article 21 of the Constitution—one asserted by the convict, the other by the survivor.
Statutory Basis: Section 389 of the CrPC
At a doctrinal level, the High Court’s power to suspend a sentence is firmly rooted in Section 389 of the Code of Criminal Procedure, 1973. The provision authorises an appellate court to suspend the execution of a sentence during the pendency of an appeal, subject to reasons being recorded in writing.
This power reflects a fundamental premise of criminal appellate jurisprudence:
- The right to appeal must be substantive, not illusory.
- If a convict is required to serve out a substantial or entire sentence before the appeal is decided, the appellate remedy risks being rendered meaningless.
Guidance from the Supreme Court of India
The Supreme Court of India has consistently acknowledged this concern.
Bhagwan Rama Shinde Gosai v. State of Gujarat
In Bhagwan Rama Shinde Gosai v. State of Gujarat ((1999) 4 SCC 421), the Court observed that when an appeal is not likely to be heard for a long time, continued incarceration may justify suspension of sentence, particularly where the convict has already undergone a significant period of imprisonment.
Kashmira Singh v. State of Punjab
Similarly, in Kashmira Singh v. State of Punjab ((1977) 4 SCC 291), the Court cautioned against keeping a person in jail for years while his appeal remains unheard, emphasising that such detention may offend the guarantee of personal liberty under Article 21.
Assessment of the Delhi High Court Order
Viewed through this lens, the Delhi High Court’s order cannot be dismissed as legally aberrant. The accused had already spent several years in custody, and the appeal was unlikely to be disposed of in the near future.
The relief was also accompanied by stringent conditions, including:
- Geographical restrictions, and
- Reporting requirements.
It is crucial to note that the order did not amount to under-trial bail; it was a suspension of sentence after conviction, a distinction that carries significant doctrinal weight in criminal procedure.
Beyond Legality: The Unfinished Constitutional Question
However, legality alone does not exhaust the constitutional inquiry.
Distance-Based Bail Restrictions and Survivor Protection
One of the most debated conditions imposed by the High Court was the restriction restraining the accused from entering a five-kilometre radius of the survivor’s residence. Distance-based restrictions are not uncommon in bail and suspension jurisprudence and are typically justified as preventive measures aimed at reducing the risk of intimidation, coercion, or undue influence. Yet, such conditions raise a deeper and more troubling question: do spatial restraints meaningfully protect the survivor’s Article 21 right to life and dignity, or do they merely provide a formal assurance of safety?
Article 21 and the Rights of Survivors
The Supreme Court has repeatedly recognised that Article 21 is not confined to the rights of the accused alone. In Bodhisattwa Gautam v. Subhra Chakraborty ((1996) 1 SCC 490), the Court held that rape is a crime not only against an individual but against society, and that the victim’s right to live with dignity is an integral component of Article 21. More recently, in Nipun Saxena v. Union of India ((2019) 2 SCC 703), the Court underscored the State’s obligation to protect the privacy, dignity, and psychological well-being of survivors of sexual offences.
Limits of Spatial Restraints
From this perspective, the concern with distance-based restrictions is not merely theoretical. Threats, intimidation, and psychological pressure are not confined to physical proximity. They often operate through intermediaries, social networks, and persistent fear. A condition that restricts physical movement may reduce risk, but it does not eliminate it. While courts are correct in insisting that bail conditions must be preventive rather than punitive, the constitutional obligation to protect survivors cannot be discharged through symbolic restraints alone.
Effectiveness and Enforceability of Bail Conditions
The jurisprudence on bail and suspension of sentence repeatedly emphasises that conditions must be effective, enforceable, and responsive to changing circumstances. In Mahipal v. Rajesh Kumar ((2020) 2 SCC 118), the Supreme Court held that bail orders can be cancelled where conditions prove inadequate or where relevant considerations were ignored. This principle applies with equal force to suspension of sentence under Section 389. If a condition imposed by the court fails to secure the survivor’s safety in practice, the Constitution demands that the court revisit and recalibrate its approach.
Systemic Problem Behind Judicial Discomfort
The discomfort surrounding the Delhi High Court’s order thus reflects a systemic problem rather than a purely judicial one. Criminal appeals in serious cases often remain pending for years due to structural delays, overburdened dockets, and procedural inefficiencies.
Institutional Dilemmas Faced by Courts
- Prolonged incarceration that risks violating the convict’s Article 21 rights
- Conditional liberty that may leave survivors feeling exposed and unprotected
Courts are then forced to choose between two unsatisfactory options. In this institutional delay, survivors are often left navigating uncertainty, while courts rely on procedural balances that appear fragile on the ground.
Need for a Holistic Constitutional Response
The solution does not lie in abandoning constitutional protections in cases involving heinous crimes. To do so would be to erode the very foundations of due process. Nor does it lie in treating suspension of sentence as an act of judicial leniency divorced from victim welfare.
What Is Required
- Expedited appellate hearings in serious offences
- Robust victim-protection mechanisms backed by effective enforcement
- Judicial willingness to modify or revoke relief where circumstances so demand
Article 21 and Constitutional Balance
Ultimately, Article 21 protects both liberty and dignity. It speaks to the rights of the convict not to be subjected to arbitrary or prolonged deprivation of liberty, and equally to the survivor’s right to live without fear, humiliation, or continuing trauma.
| Protected Interest | Constitutional Meaning |
|---|---|
| Liberty of the Convict | Protection from arbitrary or prolonged deprivation of liberty |
| Dignity of the Survivor | Right to live without fear, humiliation, or continuing trauma |
When one is preserved at the perceived cost of the other, constitutional balance is not achieved—it is merely deferred. The challenge before courts is not to choose between these competing claims, but to ensure that neither is reduced to a procedural formality.
