It is an established principle of criminal jurisprudence that in the absence of specific countervailing factors, there is a general presumption in favour of bail. This rule is a natural extension of the very foundation of the modern legal system, which proceeds on the assumption that all persons are innocent until proven guilty. The enormous public anger against the scale of corruption and fraud, and the brazenness of the conspiracy, involved in the 2G spectrum scandal is understandable and must be commended. But the ‘grave magnitude' of the case should not be allowed to detract from the basic legal principles underlying the grant of bail. But this is what seems to have happened in the CBI special court's denial of bail to DMK MP Ms Kanimozhi and seven others in the 2G case. Given that charges have been framed and the case will go to trial in a few days, why should they remain in jail? The contention that they could tamper with evidence is unpersuasive — the gap between the time the 2G licences were issued and the probe was initiated would have given all accused enough time to destroy or conceal whatever they wanted to. The court maintained that the accused, being influential, could influence the witnesses and prejudice the trial. But the obvious answer would be to place certain restrictions on their movement and activity. The unstated implication of bail denial is that the accused should be in jail until the trial is over — a position that is extreme. The court also ignored the fact that some of the usual grounds for refusing bail — such as the possibility of the accused fleeing from justice or repeating a similar offence — do not apply here.
Unfortunately, the attitude adopted by the CBI vis-à-vis bail for the accused was inconsistent and hard to defend. While it opposed bail to a few high-ranking telecom company executives, it chose not to do so in the case of Ms Kanimozhi and others connected to the alleged payoffs to Kalaignar TV. Ostensibly, this was because the latter were accused in a supplementary charge sheet and under sections where the maximum punishment is five years (as opposed to seven). What this unconvincing argument did was to harden suspicions of political motivation. It is good that high profile cases such as the 2G scandal evoke public outrage, but it is imperative that the criminal justice system is not led by public opinion and emotions. The denial of bail does not presume guilt; nor does the grant of bail imply innocence. The job of the criminal justice system is to do its best to see that all the guilty in the 2G scam are convicted — it is not to make the accused languish in jail as undertrials.