Arshad Shaikh studies the recent judgment and remarks by the apex court about bail. In an era where investigative agencies readily facilitate the government for heaping vengeance on its political opponents through arrests and invoking draconian sections of the CrPC, the position taken on bail by our highest palladium of justice is a welcome relief. The SC even suggested that enacting new legislation on bail on the lines of the UK Bail Act is the need of the hour. Will the government heed the advice of the judiciary? The message of the Supreme Court is loud and clear and should be popularised. The people must compel lawmakers to support the changes in the bail process. After all, liberty and democracy are at stake.
In July 2022, the Supreme Court of India called upon the government to come up with a new law on bail. The apex court said that there is a “pressing need” to change certain bail provisions of the CrPC (Code of Criminal Procedure) and frame new legislation along the lines of the UK Bail Act. In a way, this ruling was like an addendum to clarify an earlier judgment (Satender Kumar Antil Vs Central Bureau of Investigation) delivered by a two-judge bench of the SC headed by Justices Sanjay Kishan Kaul and M.M. Sundaresh, in July 2021 on bail reform.
This July 2022 ruling must be hailed as a milestone for the Indian judiciary in its quest to deliver justice and play the role of the custodian of liberty and democracy. The two learned judges laid down the fundamental principles of criminal procedure and underlined the primacy of bail over jail. The ball is now firmly in the court of the government and our lawmakers. Since it would naïve to expect our current dispensation to “bite the bullet”, it is the responsibility of conscientious citizens to collate “people’s power” to ensure that our MPs unite to bring about the necessary changes in the bail process as suggested by the judiciary.
THE CURRENT SITUATION
Indian jails are filled with undertrial prisoners. According to the latest NCRB data, more than three-fourths (77%) of India’s jail inmates are currently on trial or imprisoned on remand awaiting trial. The total number of Indians behind bars is 554034 of which 427165 are undertrials. Of these, district jails accounted for 51.4%, central jails (36.2%) and sub-jails (10.4%).
One of the main reasons for such a high number of undertrials in our prisons is the high pendency of cases. By the end of 2021, more than 14.4 million (91.2%) cases were pending with the various courts in India.
Not mincing words, Justices Kaul and Sundaresh castigated the executive by saying among these undertrials a “majority may not even be required to be arrested despite registration of a cognizable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other.”
PRIMACY OF BAIL OVER JAIL
The judges quoted generously from earlier judgments, the jurisprudence followed in other countries and the various sections of the CrPC to assert, “Bail is the rule.”
They pointed out that:
- Every man is deemed innocent until duly tried and duly found guilty;
- This presumption of innocence is a facet of Article 21 of our Constitution and a key section that upholds the fundamental right to life and personal liberty;
- The power to authorise detention is a very solemn function; but it is (currently) being exercised in a routine, casual and cavalier manner; and
- The occasion to arrest an accused during investigation arises when the custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or the accused may abscond. Merely because an arrest can be made because it is lawful does not mean that an arrest must be made.
OBSERVATIONS AND DIRECTIONS
There are some significant takeaways from this landmark judgment on the importance of bail.
- There is a need for new legislation on bail (UK Bail Act can be utilised as a template) as despite the best efforts of the judiciary, the present sections of CrPC have been unable to shed their old colonial nature that ignores arrest as violative of personal liberty.
- Persons accused of the same offence are treated differently by the same or different courts.
- There exists a culture to arrest for teaching a lesson to the accused even for non-cognizable offences.
- Investigative agencies and their officers must comply with Sections 41 and 41A of the CrPC (that deal with different procedures related to an arrest). Non-compliance and dereliction of duty would entail appropriate action against those police officers and bail for the accused.
- High Courts are ordered to find out all undertrials unable to comply with bail conditions and facilitate their release under Section 440 (related to bond and its reduction).
- Bail applications should be disposed of within two weeks and applications for anticipatory bail are expected to be disposed of within six weeks.
- All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within four months (to ensure these directions are executed).
The three pillars of any democracy are the legislature, the executive and the judiciary. The judges quoted Harold Laski who said – “An uncontrolled power is the natural enemy of freedom.” If political parties that are ideologically inclined to authoritarianism taste power, it is obvious that personal liberty will be in peril. Executive power becomes subservient to the will of its political masters rather than adhering to the noble values enshrined in the Constitution, which they are duty-bound to protect.
This taste of being a law unto them is bound to corrupt the investigative agencies and the police. Such a situation is the last nail in the coffin of democracy. In such a grave situation, only an active and “woke” citizenry can remedy the situation. They must join hands and prevail upon our lawmakers to make appropriate changes in the bail law.
As quoted by Justices Kaul and Sundaresh, we have undertrials “in jail for as many as 5, 7 or 9 years and a few of them, even more than 10 years, without their trial having begun. What faith can these lost souls have in the judicial system, which denies them a bare trial for so many years and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them. It is a travesty of justice that many poor accused, little Indians are forced into long cellular servitude for little offences because the bail procedure is beyond their meagre means and trials don’t commence and even if they do, they never conclude.”
People must come forward to protect their fundamental rights and not leave them to the government and the judiciary. Isn’t democracy the rule of the people, by the people, for the people?