Recently, in Amlesh Kumar v. State of Bihar (2025), the Supreme Court of India set aside a bail order passed by the Patna High Court. The order accepted the proposal to conduct narco-analysis tests on all accused persons and witnesses during the investigation. Such tests involve administering psychoactive drugs to lower a person’s inhibitions to elicit confessions or uncover details. Two critical concerns arise from this decision: first, how the High Court justified ordering narco-analysis contrary to established Supreme Court rulings; and second, the wider legal and procedural consequences that may follow from such a High Court order.

Defying settled law

The Supreme Court in Selvi v. State of Karnataka (2010) held that involuntary narco-analysis violates the accused’s rights under Articles 20(3) and 21 of the Constitution. It further explained that conducting such tests without consent breaches due process and is a disproportionate exercise of police power. Article 141 makes the law declared by the Supreme Court binding on all Indian courts, yet it remains regrettably common for courts to ignore binding precedent. In the present case, the High Court not only ignored this settled authority but compounded its error by directing narco-analysis tests, a directive the court had no power to issue under established law.

Moreover, this direction was issued during a bail hearing, a proceeding that cannot lawfully endorse such invasive techniques. Under settled law, a bail hearing must be confined to an assessment of the allegations against the accused, gravity of the offence, risk of witness tampering, etc. Bail proceedings must remain insulated from any inquiry that could prejudice the trial; they may neither probe the merits of the case nor authorise a general investigation using involuntary investigative techniques.

Consequently, both the narco-analysis order and the bail proceedings itself were without legal foundation.

Ripple effects of judicial non-compliance

When high courts wander beyond the confines of established procedure, the consequences are both immediate and systemic.

First, each erroneous order of a High Court inflicts immediate and tangible injury to litigants’ vested rights. Since only a few people possess the means to approach the Supreme Court, such errors often go uncorrected.

Second, subordinate courts are bound by High Court precedents and lack the authority to depart from them. As a result, when a High Court departs from established precedent, it not only undermines the legitimacy of its own orders but also engenders uncertainty among subordinate courts. A single misdirection at the High Court level thus reverberates throughout the lower judiciary.

Third, Magistrates empowered to grant bail in certain non-bailable offences after weighing the offence’s gravity, the accused’s antecedents, etc., have grown reluctant to exercise that discretion. This reluctance stems from a prevailing culture of “judicial discipline” that implicitly reserves such determinations for the Sessions and High Courts. The result is a bail regime that is neither certain nor uniform.

Fourth, inconsistency in bail orders becomes unavoidable. Whereas Section 439 of the Code of Criminal Procedure empowers both the Sessions Court and the High Court to release an accused on bail under prescribed conditions, Section 482 vests the High Court with inherent powers to provide relief in exceptional situations not envisaged by other provisions. This exceptional power, however, does not permit the High Court to override settled legal principles. Some benches adhere strictly to Section 439, granting bail only on the conditions that provision contemplates. Others, while purporting to act under Section 439, read into it the sweeping remedies of their inherent powers under Section 482, imposing conditions that the Code never envisaged. For example, High Courts have granted bail on the requirement that the victim and accused in rape proceedings marry, a condition that falls outside the scope of Section 439. This misapplication leaves litigants perplexed, encourages forum-shopping, and erodes public trust in the judiciary.

Amlesh Kumar exposes how High Courts can stray so far from settled procedure that the Supreme Court is compelled to correct fundamental errors. Ordering narco-analysis in a bail hearing is neither principled nor exceptional. It reflects a pattern of judicial overreach and procedural laxity at the appellate level. While a dedicated Bail Act, as recommended in Satender Kumar Antil v. CBI (2022), may guide uniform practice, legislation alone cannot curb judicial excess. Only when High Courts confine themselves to the narrow parameters of bail hearings can we secure a bail regime that is fair and predictable.