The inquiry into the State’s “wherewithal” when deciding bail in Arvind Dham v. Directorate of Enforcement sets the stage for a paradigm shift in Indian bail jurisprudence. Traditionally, the question of bail has centred only on the accused through (i) the “triple test” (threat of flight risk, evidence tampering, and influencing witnesses), sometimes supplemented by (ii) the “twin conditions” of prima facie innocence and likelihood of not committing a ‘similar crime’ under special statutes like the Prevention of Money Laundering Act, 2002 (PMLA).
In Arvind Dham, the Supreme Court granted bail after 16 months’ pre-trial detention, noting that the Directorate of Enforcement (ED) proposed to examine 210 witnesses and rely on over 63,000 pages of documents. The Supreme Court noted the improbability of speedy trial and held that continued incarceration violated the accused’s rights under Article 21 of the Indian Constitution. Till Arvind Dham, the State’s wherewithal was only tested at the initial stage of incarceration, i.e., with the accused being released on ‘default bail’ if the investigation is not completed within 60 or 90 days of arrest under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (depending on the offence).
The “wherewithal test” balances this with a State-centric inquiry into the right to speedy trial at each stage of pre-trial detention and asks whether the prosecution and judiciary have the wherewithal to deliver on the right to speedy trial. If the answer is no, Arvind Dham holds that the State “…should not oppose the plea for bail on the ground that the crime committed is serious…”. The test is yet to be applied as a forward-looking safeguard. So far, as applied, the test has been more a justification for bail after prolonged incarceration.
The Punjab and Haryana High Court recently applied the test in Amandeep Singh v. State of Punjab (after ~6 years in custody) and Pargat Singh v. State of Punjab (after 5 years in custody). The Supreme Court reaffirmed the test in Syed Iftikhar Andrabi v. National Investigation Agency, Jammu (after 5 years in custody). Even in Arvind Dham, the ED knew at minimum the number of witnesses and volume of documents they proposed to rely on before prolonged incarceration. The accused was arrested on 9 July 2024, and the prosecution complaint was filed on 6 September 2024 against him and 15 others (presumably, within 60 days to defeat the accused’s right to default bail). The wherewithal inquiry should not have waited another 14 months.
Principally, the wherewithal test’s roots lie in the accused’s rights (i) to speedy trial and (ii) against prolonged pre-trial detention. However, unlike cases where the accused is granted bail after custody for over half their maximum sentence (Ajay Ajit Peter Kerkar) or is released on account of prolonged detention (Manish Sisodia, K.A. Najeeb), the wherewithal test requires that an accused establish only the likelihood of prolonged pre-trial incarceration. Courts can arguably run a wherewithal inquiry the moment a charge sheet or prosecution complaint is filed.
Institutional realities make this imperative. Per Rajya Sabha Unstarred Question No. 2780, answered on 17 March 2026, 1,692 prosecution and supplementary complaints were filed before PMLA Courts since 2021. Yet, judgments on merits were delivered in only 59. Even without benchmarked data on average trial duration in India, courts already possess the relevant indicators when a charge sheet or a prosecution complaint is filed. Courts can, at that juncture, assess wherewithal based on (i) the number of witnesses and accused, (ii) the volume of material and documents the prosecution relies on, and (iii) the likelihood of further investigation. These indicators of trial length are inherent in the prosecution’s case, not contingencies that emerge after someone has lost years of their life in custody.
The wherewithal test allows courts to restore bail as a safeguard against prolonged pre-trial incarceration, rather than devolving into post-facto apology for years of unjustified imprisonment. It also has potential to address questions of prosecution infrastructure and practices (like filing piecemeal charge sheets and prosecution complaints within statutory timelines to defeat the right to default bail). Even so, Arvind Dham is not a ‘get-out-of-jail-free’ card. Trials in India are anything but speedy. If Arvind Dham intended to acknowledge this reality through the immediate and mass-release of most undertrials, the Supreme Court would have said so. As cite-happy as defence lawyers are with the judgment, courts will need to go a long way to evolve jurisprudence that both balances and ranks the wherewithal inquiry alongside existing tests for bail.
