(NOTE: This article was originally published in the India Today issue dated November 8, 2021)
Aryan Khan, the 23-year-old son of superstar Shah Rukh Khan, may think his plight to be miserable. On October 3, he was arrested under the stringent Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, for his alleged ‘involvement in consumption, sale and purchase’ of drugs.
Yet, when a special court rejected his plea for bail-17 days after his arrest-his case attracted massive public attention, and the court’s exercise of its discretion became a subject of intense debate. Backed by a strong legal team, Aryan managed to get an urgent hearing in the Bombay High Court on October 26, rare in such cases. There are others who have worse experiences to narrate.
Contrast the fate of Chunni Lal Gaba, the 72-year-old multimillionaire businessman from Punjab. Arrested in 2014 for his alleged involvement in a drug racket, Gaba had to move the Supreme Court this June as his request for hearing his bail plea had been pending in the Punjab & Haryana High Court for nearly 17 months. Shocked at the development, the apex court observed: ‘Non-listing of application for regular bail, irrespective of seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody.’
Likewise, comedian Munawar Faruqui, who was arrested for cracking jokes that allegedly hurt religious sentiments, had to be in jail for over a month because the sessions court and Madhya Pradesh High Court rejected his bail pleas. Eventually, the Supreme Court granted him bail, saying that the allegations were ‘vague’ and the police ‘did not follow the procedure’ in arresting him without preliminary investigation.
And it’s not just high-profile or drug-related cases. In March 2020, a Surat court acquitted 127 men of charges of terrorism, 20 years after their arrest! In 2014, the Supreme Court acquitted six people of the 2002 Akshardham terror attack charges after they had served a decade in prison.
The fact that 69 per cent or 330,487 of the 478,600 inmates currently in Indian prisons are undertrials shows that jail, not bail, is the norm in the Indian criminal justice system. Indiscriminate arrest, delays in investigation and the slow pace of trials result in long periods of incarceration for most undertrials. The 268th report of the Law Commission, released in 2017, observed that only 28 per cent of the accused in India got bail.
According to Supreme Court lawyer Abhinav Sekhri, almost half of the trials result in acquittals, with every trial taking at least 1-3 years on an average. Not only does this impact an individual’s fundamental right to liberty as enshrined in Article 21 of the Indian Constitution, undertrial detention also erodes the principle of ‘presumed innocent until proven guilty’, which demands that an accused’s freedom of movement and right to life not be curtailed until guilt is proven.
It was only in October 2020 that the Supreme Court upheld what Justice V.R. Krishna Iyer had set as a legal doctrine in a 1977 landmark judgment-bail is the rule, jail is an exception. While asking the courts to uphold this principle so that they can remain the “first line of defence” for citizen liberty, Justice D.Y. Chandrachud said: “Deprivation of liberty even for a single day is one day too many.”
Besides denying an accused their fundamental right, the increasing rejection of bail is also adding to the overcrowding of jails, a fact the Law Commission’s 268th report noted. India has 1,350 jails where the occupancy rate is nearly 120 per cent. These prisons cost nearly Rs 6,000 crore in 2019-20, yet inmates are denied even basic amenities, making them susceptible to disease, which could be disastrous in a pandemic situation.
Noting the fact that over 60 per cent of the arrests were unnecessary and that such arrests accounted for 42 per cent of jail expenditure, the National Police Commission recommended a set of guidelines in 1980 to make arrest during investigation a cognisable offence. In May, the Supreme Court ordered the police to limit arrests during the pandemic to prevent overcrowding of jails and urged courts not to order detention mechanically.
Yet, these directives seemed to have had little effect. A 2020 study by the Criminal Justice and Police Accountability Project, an NGO based in Bhopal, found that between March 22, 2020, and May 17, 2020, 34,000 arrests were made in MP, mostly for flouting lockdown norms. “Police misuse or overuse their power of arrest.
This happens due to a variety of factors-corruption, ignorance of the law and the Supreme Court’s guidelines on arrests, carrying out government orders without application of mind, wanting to appease the party in power and sometimes even at the behest of the mafia which has political patronage,” says Prakash Singh, a former DG of BSF (Border Security Force), the Uttar Pradesh and Assam Police.
If this higher share of adverse decisions on bail pleas was not enough, procedural delay has made matters worse. On July 8, the Supreme Court ordered the Central Jail in Agra to release 13 convicts who were juveniles when they committed the crimes. These convicts had already spent 14-22 years in jail though they should have been kept in a juvenile home for only three years. Even after the court order, it took the jail authorities four days to release the convicts.
In June, Pinjra Tod activists Devangana Kalita and Natasha Narwal and Jamia Millia Islamia student Asif Iqbal Tanha walked out of the Tihar Jail nearly two days after the Delhi High Court had granted them bail and that too after a second intervention by the court. On most occasions, the usual excuse for such delay is non-receipt of the hard copy of the court order in time or difficulty in verification of the accused’s address.
The procedural delays, mainly in the hearing of bail pleas, are also a result of the serious dearth of manpower in the judiciary. Despite periodic addition to the judicial ranks, India’s judge-population ratio is far below international norms. From 14 judges per million people in 2000, the ratio has gone up to 21 in 2020. It is 147 and 102, respectively, for China and US. “Approximately a fourth of the sanctioned strength of judges in every state always remains unfilled,” says Justice B.S. Chauhan, chairman of the 21st Law Commission of India.
No formula
Most legal experts agree that the inconsistencies and rigidity in bail orders arise from the inherent flaw in the current system of bail. The CrPC categorises offences into two categories-bailable and non-bailable. In bailable offences, the right to bail is absolute and indefeasible. However, bail is granted on submission of a monetary surety decided by the court.
Even the Law Commission and the Supreme Court admit that this provision results in the unwarranted imprisonment of many undertrials, particularly those from poor economic backgrounds. The bail amount in subordinate courts, even for petty offences punishable by less than three years, is a minimum of Rs 10,000. A 2018 report by the Azim Premji University says that even among regular wage earners, 57 per cent earn less than Rs 10,000 per month.
The educational profile of the undertrials-28 per cent illiterate and 41 per cent under class 10-also reveals that a majority of them come from underprivileged backgrounds. Two-thirds of India’s prison population are undertrials from Dalit, Adivasi and Other Backward Class communities, often accused of minor offences. Many cannot afford legal help and remain unaware of their rights. The government provides mandatory legal help only after charge sheets are filed and trials begin.
For non-bailable offences, the accused does not have the right to bail, it is the court’s discretion to grant bail. The principles for this exercise of discretion have never been statutorily prescribed beyond saying that magistrates ought not to grant bail in cases involving offences that are punishable with life imprisonment or death.
The Supreme Court in 2007 observed that ‘no straitjacket formula exists for courts to assess an application for the grant or rejection of bail’, but has enumerated relevant factors for discretion such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the person accused of an offence, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of tampering with evidence or influencing witnesses, and the larger interests of the public or the State.
Since granting bail is discretionary, the judiciary, particularly the lower courts, over the years, have not followed any fixed pattern in allowing or disallowing it. However, the more worrying trend is the increasing rejection of bail by these courts and more so in cases in the public eye. “It has been noticed that in many controversial cases, the lower courts prefer to shift the responsibility of deciding a bail application to the higher judiciary because they lack confidence in taking a decision that favours the granting of bail,” says Professor Manjula Batra, former dean of the law faculty at Jamia Millia Islamia, Delhi.
Professor Subir K. Bhatnagar, vice-chancellor of Ram Manohar Lohiya National Law University, believes that judges sometimes are likely to deny bail to avoid being perceived as insensitive to the victims of the crime.
Justice Atul Sreedharan of the MP High Court voiced exactly this apprehension in May while granting bail to an octogenarian woman accused: “Case after case, this court has observed that the district judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses. Hardly ever does the court below examine the requirement for continued incarceration of the accused as an undertrial but for the routine reasons given above.”
The discretionary aspect is also leading to some questionable rationale and conditions in granting bail to other individuals accused of heinous crimes. In August, while granting bail to a 21-year-old IIT-Guwahati student accused of raping a fellow student, the Gauhati High Court noted that while there was a ‘clear prima facie case’ against the accused, the accused was a talented student and a future asset for the state!
A 2017 order by the Punjab and Haryana High Court granting bail to three men convicted by a trial court for repeatedly gang raping and criminally intimidating a fellow university student was even more shocking: ‘The accused are young and there was no gut-wrenching violence which normally accompanies such situations.’
In March, the Supreme Court had to set aside a July 2020 judgment of the MP High Court wherein it asked a man accused of sexual assault to get a ‘rakhi’ tied by the victim as a prerequisite for bail. The next month, while cancelling the Allahabad High Court bail granted to gangster Arun Yadav, an accused in 15 cases of murder and attempt to murder, the apex court advised all high courts not to mechanically grant bail to sharpshooters and heinous offenders and weigh its effect on the safety of witnesses and families of victims.
The process as punishment
Courts have not always been so lenient, particularly in cases related to special laws such as the UAPA (Unlawful Activities Prevention Act) or its earlier avatars such as POTA and TADA. Most critics concur that the inherent scope of prolonged imprisonment in these laws, even at the pre-trial stage and irrespective of the merit of the case, suggests that their primary objective is preventive detention. Government authorities, therefore, often use these provisions to jail people without prosecution. For instance, under UAPA, an individual can be kept in detention without bail for 90 days, extendable to 180 days.
Using these loopholes, the government can even define crime to make it non-bailable, something that has been done mostly with the UAPA. “The politicians are, day by day, becoming less tolerant of dissenting views and, therefore, when in power, do not hesitate in slapping non-bailable provisions on the dissenters. But courts must be very quick to guard the liberty of individuals,” says Prof. Bhatnagar.
The Supreme Court has repeatedly observed that special legislations remain inconsistent and unpredictable and, therefore, raises concerns regarding the violation of Article 21 with regards to the rights of the accused. According to Supreme Court lawyer Utkarsh Singh, this is exactly what happened in the case of Father Stan Swamy, the octogenarian activist accused of inciting caste clashes in Maharashtra’s Bhima Koregaon in 2017.
Under the UAPA, bail cannot be granted if the prosecution, either through the case diary or through the charge sheet, can demonstrate “reasonable grounds” for believing that the accusation is prima facie true. Swamy’s lawyers had repeatedly moved court for bail considering his deteriorating health- Swamy suffered from Parkinson’s-but the National Investigation Agency, which arrested Swamy in October 2020, kept opposing his bail throughout his incarceration in Tajola jail though it never sought his custody for interrogation. Swamy died in July after spending nearly nine months in jail.
“Swamy could have been released on interim bail on medical grounds. Judges must strike a balance or mitigate State-borne atrocities. They can’t believe the charge sheet blindly or the allegations unless there is compelling evidence or chain of circumstances that inspire confidence in the case against the accused and do not reek of vengeance,” says Utkarsh Singh.
Similarly, while granting bail on September 8 to five accused in the Delhi riots case, who had been imprisoned for more than a year, the Delhi High Court observed that ‘the sole act of protesting’ cannot be used as ‘a weapon to justify the incarceration’ of those exercising this right. “Long detention on grounds that could be genuine, or imaginary, becomes the punishment for those who are accused or charged,” says Vikram Singh, former DG of Uttar Pradesh Police.
Bail has become even more difficult in arrests under certain laws where twin conditions are applied-the public prosecutor must be allowed to oppose any application for release on bail and if he or she does so, the court will have to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail.
These conditions, therefore, reverse the basic tenet of Indian jurisprudence-one must prove innocence even at the stage of bail. These twin conditions are applied in offences under laws such as the Prevention of Money Laundering Act (PMLA), 2002; Companies Act, 2013; NDPS Act, 1985 and Maharashtra Control of Organised Crime Act, 1999. “Such conditions ensure that bail is given very restrictively, and individuals are left at the mercy of probing agencies. That’s why it’s important to do a regular audit of all laws every 5-10 years, particularly those that curtail personal liberty,” says Sidharth Luthra, a senior advocate in the Supreme Court.
However, the sterner view on bail in cases related to PMLA derives from the fact that, before making an arrest, the law mandates that, based on the material collected during investigation, there must be ‘reason to believe’ that the accused person is guilty of money-laundering and that ‘reason to believe’ must be ‘recorded in writing’. Under the CrPC, the police can make an arrest on mere suspicion.
Besides, economic offences also attract a tougher stance as the Supreme Court treats them in a different class while deciding on bail. The Law Commission report also says that crimes for personal financial gains are anathema to the basic tenet of democracy as they erode people’s faith in the system and, therefore, it is necessary to impose stringent bail conditions.
In June, while cancelling the bail granted by a city court to Shivinder Mohan Singh, former promoter of Religare Enterprises Ltd (REL), in connection with a case pertaining to alleged misappropriation of funds at Religare Finvest Ltd (RFL), the Delhi High Court observed: ‘The grant of bail in a case involving cheating, criminal breach of interest by an agent of such a large magnitude of money, affecting a very large number of people, would have an adverse impact not only on the progress of the case but also on the trust of the criminal justice system that people repose.’ Shivinder, and his brother Malvinder, were arrested by the Delhi Police’s Economic Offences Wing in October 2019 and have been in judicial custody since then.
How the courts see it all
As Luthra points out, the precedents set by the higher courts often make it difficult for the lower courts to grant bail. “The number of reported cases where the high courts have set aside bails granted by the lower courts and the Supreme Court has set aside bails granted by the high courts is increasing. This indicates that there is an interference with the discretion of judges on matters of granting bail. Consequently, many are wary of exercising discretion in favour of grant of bail,” he says.
This dichotomy in the functioning of the higher courts often sends confusing signals to the lower court. A lawyer, who did not want to be named, points towards the Supreme Court’s urgent hearing of journalist Arnab Goswami’s bail plea last October. “While he got preferential treatment, an RTI filed during the same period found that there were more than 900 bail applications pending before the top court,” says the lawyer.
Several legal experts feel that lower judicial officials are reluctant to grant bail fearing adverse remarks in their annual report or a discreet inquiry against them. “For a bolder and liberal approach by lower court judges in decisions related to bails, it’s important to delink review of their judicial decisions from the purview of annual appraisal done by the high courts,” says former chief justice Ranjan Gogoi.
Former Supreme Court judge Jasti Chelameswar recalls how a complaint against a lower court magistrate reached the Andhra Pradesh High Court, alleging that the judge in question had taken bribe to acquit an accused. A notice was served on the judicial officer. Later, during the probe, it was found that he had actually convicted the accused but the complainant was not happy with the sentencing. “Though it was a factually incorrect allegation, the judge had to go through the drill of facing an inquiry,” he says, explaining why lower court judges seek to play it safe.
It has also been widely accepted that media scrutiny and social media discourse do influence bail decisions. “If a judge feels that his or her judgment will be discussed on prime-time television, he or she is likely to refrain from the spotlight and pass the responsibility of deciding to higher courts,” says Utkarsh Singh.
Government’s position
As inconsistencies in bail orders become more glaring, there is growing clamour for a statutory bail law as court guidelines have not been uniformly followed. The Union government has recognised that the country’s bail provisions need a massive overhaul. In 2015, the Union law ministry asked the Law Commission to examine the desirability of having a separate bail act. A year later, though, it asked the commission to achieve ‘the objective by bringing necessary changes in the existing provisions of the CrPC’.
The Law Commission, in its 154th Report in 1996, had already cited an exhaustive list of 12 factors relevant for considering bail, including the gravity of offence, the nature of the accusations, the status of the accused, antecedents, and possibility of tampering. In its 268th report in 2017, the commission included the presumption of innocence as another relevant consideration in bail applications.
It also recommended that monetary conditions of bail be invoked only as a last resort and proposed that original ID documents be deposited with the court as an alternative to a surety. However, none of these recommendations has yet been incorporated into the CrPC.
Prior to this, the biggest reform related to bail provisions took place in 2005 when Section 436A was incorporated into the CrPC. It stipulates that a prisoner shall be released on bail on a personal bond if he or she has undergone detention of half the utmost period of imprisonment specified for that offence. To ensure smooth implementation of this provision, the government has launched the e-prisons portal, which empowers state jail authorities to quickly identify eligible inmates.
Experts have suggested several other reforms such as the creation of checklists to address individual discretion while deciding bail applications and non-custodial alternatives like periodic check-ins with the police. Prof. Batra suggests revisiting the criteria for classifying offences as bailable or non-bailable, making more offences bailable.
From time to time, the Supreme Court, too, has also tried to make the system more functional. For instance, irked at the Agra jail incident, an SC bench headed by Chief Justice N.V. Ramana, announced the rolling out of a new scheme called the Fast and Secure Transmission of Electronic Records (FASTER). It enabled the court to instantly, directly, securely and electronically transmit bail and other orders to jail authorities, district and high courts. The bench also directed all states and Union territories to ensure internet connections with adequate speed in all jails so that prison officials could release inmates without delays after receiving electronically authenticated bail orders.
Most judicial luminaries, however, refuse to see bail in isolation and say the provisions can be fixed within wider judicial reform. Even the Law Commission has said that bail law reform isn’t the panacea for all ills of the criminal justice system. The solution, most legal experts concur, lies in expediting the trial process. That can happen when the process is supported by a sound judicial infrastructure, including adequate manpower.
Taking cognizance of this, the Cabinet approved a five-year extension in July for a centrally sponsored scheme to develop infrastructure for the judiciary, with a targeted spending of Rs 9,000 crore. Union law minister Kiren Rijiju is scheduled to meet state law ministers to make a fresh push to improve judicial infrastructure in the country.
However, most senior judges believe that added infrastructure and induction of more judges is unlikely to make the judiciary efficient. For qualitative improvement and speedy justice delivery, the system must recruit individuals who have the aptitude and passion for delivering justice. The NCRB (National Crime Records Bureau) data shows that despite a regular hike in judicial manpower, there is no significant reduction in the share of case pendency, further highlighting the importance of skill sets required for time-bound disposal of cases.
“The strength of a judicial decision depends on how far the individual judge wants to keep themselves immune to any kind of external influence. That can happen only when the judicial officer has the skill and passion for his job,” says Justice Gogoi. That’s a lofty goal for a system crippled by multiple flaws.
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