India abolished slavery over a century before attaining Independence. But the situation on the ground does not seem any better. At least the treatment meted out to the minorities, Muslims in particular, as well as Dalits, STs/SCs and Adivasis, drives the point home. The high number of undertrials in prisons, which shows the willing suspension of justice delivery system, raises a question of Liberty as also of Justice. About 70 per cent of jail inmates are undertrials, most of them too poor to move for bail. The issue has come to the fore once again with the Supreme Court, the highest palladium of justice in India, stressing a ‘pressing need’ for reform in bail law and calling on the Government to consider framing of a special legislation on bail on the lines of the law in the United Kingdom. Issuing certain clarifications to an older judgment delivered in July 2021 on bail reform in Satender Kumar Antil Vs. CBI case,  a two-judge Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundaresh observed in a democracy, there can never be an impression that it is a police state.

The Bench also noted, “Of this category of prisoners, the majority may not even be required to be arrested despite registration of a cognisable offence, being charged with offences punishable for seven years or less.” The system is making many of the prisoners inherit ‘a culture of offence’. This should come to an end.

In its 85-page ruling, on July 11, the apex court observed, “Liberty, as embedded in the law, has to be preserved and protected” and noted that the Code of Criminal Procedure as it exists today is a continuation of the colonial era, with certain modifications though.

The Bench suggested reforms in the entire system of justice delivery, from police officers to investigating agency to the courts. It observed, “We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial.”

While considering reforms in bail law and in fact in the entire justice delivery system, the authorities need to take their cue from Caliph Umar, who is known in human history to have dispensed justice without fear or favour in the true sense of the term. Once a man from Egypt complained to Caliph Umar against the son of Amr ibn Al-Aas, the then governor of Egypt, who boasted of being ‘the son of the dignified’! The Caliph allowed the appellant to strike the son of Amr with a whip, and asked the governor, ‘Since when did you start enslaving people, though their mothers bore them as free men?’ This unalloyed justice still gives a strong message to the world and has the potentiality to save the nation from falling into a police state.

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