HIRAMAL NAIK AND KUMESHWAR NAIK, begin each morning cleaning the premises of the Kashipur Police Station for free, and not out of their own choice. Both are in their middle ages, coming from a Dalit community in Odisha’s southwestern district of Kalahandi.
This forced work, this indignity has been imposed upon them through directions by none other than the Sessions Court in Rayagada District and the Orissa High Court, when granting them bail. Hiramal and Kumeshwar are both accused persons in the same criminal case . Under the most basic tenets of criminal justice, both must be presumed innocent until proven guilty. Yet the courts have imposed forced labour as a condition of their freedom—a practice that violates both the fundamental premises of criminal justice and the constitutional prohibition against caste-based discrimination.
The constitutional framework: Criminal justice and discrimination on the basis of caste
The Constitution of India establishes critical principles that intersect in cases like the above. The criminal justice system operates on the presumption of innocence—an accused person remains innocent until guilt is proven through the process of a trial, a critical element of the principle of due process enshrined in Article 20 of the Constitution. Further, Articles 14 (equality), 15 (non-discrimination), 17 (abolition of untouchability), 21 (life and liberty), and 23 (prohibition of begar and forced labour) collectively prohibit any practice that creates social disabilities based on caste or subjects individuals to unpaid labour. *
When these constitutional principles are viewed together, they create a framework that protects accused persons from punitive pre-trial treatment and caste-based discrimination during the criminal justice process.
The intersection of these principles is particularly significant in these cases, where Dalit men have been ordered to perform cleaning work—an occupation historically associated with caste-based social hierarchy and stigma.
What bail is meant to achieve
The primary purpose of granting bail has never been to punish an accused person. Incarceration before conviction serves a strictly limited purpose – enabling investigating authorities to conduct a free and fair investigation, unhindered by an accused person who might threaten witnesses, destroy evidence, or leave the jurisdiction to escape prosecution entirely.
This must be measured against the highest of constitutional standards, as incarceration necessitates the curtailment of personal liberty by the State, which is firmly protected under Article 21. Bail is a crucial aspect of the right to personal liberty. It presumes the accused innocent until proven guilty and aims to ensure their appearance in court when required, without unnecessary detention. Courts are obligated to bear this in mind while deciding bail applications.
As articulated by the Supreme Court in Mohammed Zubair v. State of NCT Delhi, (2022):
The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed. (at Para 29) (emphasis supplied)
Against this constitutional standard, the conditions imposed on the Naiks and others like them fail spectacularly.
Violations of basic principles of criminal procedure
Bail is decidedly not a punitive measure against persons accused of a criminal offence, but rather an articulation of the well-established constitutional principle that personal liberty is the rule, and its curtailment an exception. At the stage of bail, an accused is still only an accused and their guilt remains to be proven through the course of a trial. Therefore, a punitive condition of bail defies the entire basis of the criminal justice system.
In Sumit Mehta v. State (NCT of Delhi) (2013), the Supreme Court held as follows,
(…) any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint. (@ para 12)
A little over a year ago in Frank Vitus v. Narcotics Control Bureau (2024), the Supreme Court articulated that any bail condition has to meet two tests:
(i) it should be in pursuance of the objective of granting bail – the accused should not tamper with evidence, intimidate witnesses, or flee the jurisdiction; and
(ii) it can only impair the freedom of the accused to the minimum extent possible.
Ordinarily, at the stage of granting bail, judges are not supposed to look into the accused's purported guilt in guiding their decision, since during the pendency of their trial, all accused are presumed innocent, as their guilt is yet to be adjudicated by the court.
More recently, in Girish Gandhi v. State of Uttar of Pradesh & Ors. (2024), the Supreme Court observed,
“From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right.”
It is well-established that judicial discretion in bail conditions must operate within clear constitutional boundaries and bail conditions must be reasonable, proportionate, and have a rational nexus to securing trial presence. As a result, bail conditions that impose impossible compliance requirements or violate human dignity exceed constitutional limits on judicial power.
A trend of judicial overreach in bail decisions
These clear judicial precedents appear to have escaped the attention of the courts in Odisha. The Naiks are not the only ones ordered to clean places as a bail condition, putting them in the inevitable position of choosing between bonded labour and imprisonment.
In May 2025, the Orissa High Court directed an accused person to clean the premises of ICICI Bank daily for two months as a condition of her bail in a bank fraud case. The same High Court, earlier that month, also directed a person accused of robbery to clean the wards and rooms of a hospital for a month as a condition of bail.
In May last year, the High Court had also imposed bail conditions requiring accused persons to plant hundreds of tree saplings and undertake to maintain them for years on end. When emerging from the High Court, these orders have set a precedent for sessions courts across the state, emboldening judges to step beyond their boundaries as officers of the law and their oath to uphold the Constitution of India.
The constitutional violations inherent in such conditions have not gone unnoticed. In June, civil rights activists and legal experts condemned these practices, highlighting how they perpetuate caste-based discrimination while violating fundamental principles of criminal justice.
Nor is this trend of judicial overreach in bail decisions unique to the High Court of Orissa or these particular orders. Other courts have imposed bizarre conditions for bail, where judges have imposed their own ideas of justice, driven by prejudice, or even sheer whim, in exercising judicial discretion devoid of adherence to constitutional principles.
In 2020, the Madhya Pradesh High Court had directed a rape accused to “register himself as a Covid-19 Warrior” as a bail condition in Ravi Jatav v. State of M.P. (2020) . The same High Court in 2020 directed another rape accused, as part of his bail conditions, to
visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. with a box of sweets and request the complainant Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant – Vishal for purchase of clothes and sweets.
Quite apart from the patent misogyny of such directions, the judge has given no thought to whether the complainant would find such interaction between herself, her son, and the rape accused abhorrent, or even terrifying. These directions are a far cry from modern best practice in sexual assault cases, where the courts make every effort not to allow the complainant and her accused rapist to come face to face.
Proscription of untouchability through judicial orders
Addressing caste-based discrimination and the oppression of Dalits has been understood as underpinning the entirety of Part III of the Constitution of India, which encapsulates fundamental rights.
The absolute prohibition of untouchability under Article 17 in particular extends to any practice that creates social disabilities imposed due to birth in certain castes. The Untouchability (Offences) Act, 1955, renamed the Protection of Civil Rights Act, 1955, was promulgated to further this constitutional mandate. The Supreme Court, in State of Karnataka v. Appa Balu Ingale (1992) observed:
Enforcement of any disability is a crime against human rights and the Constitution entails the wrong doer with punishment. All customs, usages, practices directly or indirectly recognising or encouraging the practice of untouchability in any form is void, being opposed to public policy. Even a contract, covenant or any private transaction tending to recognise, encourage or effectuate untouchability in any form is, therefore, void ab initio. (at Para 24)
Judges have the power to choose. They can either further social prejudice through ‘judicial stereotyping’, or they can choose to use their judicial verdicts to rid the justice system of harmful stereotypes that govern its operation. To advance the latter,
“the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge”, as noted by the Supreme Court in XYZ and Ors. v. State of Madhya Pradesh (2021)). In this case, the Supreme Court went on to pass various directions regarding the training of judges and appropriate judicial conduct in its order.
In October 2024, the Supreme Court struck down caste-based labour assignments that were common in jail manuals in Sukanya Shantha v. Union of India (2024), marking a watershed moment in addressing caste-based discriminatory structures in the Indian criminal justice system. The Court established that rules from state Prison Manuals that assign work to prisoners based on their caste, i.e., cleaning tasks to be done by so-called lower caste prisoners and cooking tasks to be done by so-called upper caste prisoners “reinforce occupational immobility of prisoners who belong to certain castes.” (at Para 182). The Court went on to observe:
When Prison Manuals restrict the reformation of prisoners from marginalized communities, they violate their right to life. At the same time, such provisions deprive prisoners from marginalized groups of a sense of dignity and the expectation that they should be treated equally. When prisoners from marginalized communities are subjected to discriminatory practices based on caste, their inherent dignity is violated. (at Para 188)
From the orders subsequently passed by the courts in Odisha, it is clear that these judicial pronouncements, and implementation of training programs on sensitivity, have had little to no traction. It beggars belief that while the highest court has proscribed discrimination through division of labour in prisons, courts in Odisha continue caste-based discrimination through bail orders. Bail conditions requiring manual cleaning work, particularly by Dalit individuals, constitute untouchability by relegating certain groups to traditionally stigmatised occupations, which is patently unconstitutional.
Dangerous precedents
The Naiks belong to a village where Adivasi and Dalit forest-dwellers like them have been protesting the state’s decision to transfer their homelands – where they have statutory rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 – to a large multinational corporation for bauxite mining. Here resides the tribal deity of the local Adivasi community, Tijraja.
To the Naiks and other forest dwellers like them, they are custodians of Tijmali, the lands named after their deity, and their knowledge, identity, and dignity are deeply rooted in the land itself. Their peaceful democratic resistance to save their lands have invited arbitrary arrests, detentions, and even torture at the hands of the state machinery.
The Naiks’ case represents more than judicial overreach. It embodies the urgent need for systemic reform in how Indian courts approach the criminal justice process in general, and bail conditions in particular. When judges impose forced labour as a condition of personal liberty, they abandon their constitutional role as protectors of individual rights, and become complicit in the state’s agenda to weaponize the criminal justice system against marginalised communities by reinforcing the very caste hierarchies the Constitution sought to dismantle. The choice between bonded labour and imprisonment, particularly when imposed on Dalit accused persons, transforms constitutional rights into conditional privileges. This undermines not merely the presumption of innocence, but the foundational constitutional promise that justice in India will not discriminate on the basis of caste.
For the Naiks, who stand accused while defending their ancestral lands against corporate aggrandisement, this judicial persecution adds another layer to their struggle for dignity and rights. Their case serves as a stark reminder that constitutional protections mean nothing if courts themselves become instruments of discrimination.
The Indian judiciary must recommit to its constitutional mandate: ensuring that bail serves its purpose of securing trial attendance while preserving the liberty and dignity of all accused persons, regardless of their caste or social position, upholding their oath to protect all citizens equally under the Constitution of India.
Notes:
* The prohibition of forced labour under Article 23 of the Constitution of India has been interpreted to include any labour that takes place with pay by the Supreme Court in PUDR v. Union of India (1982).