The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. — Justice V.R. Krishna Iyer, in the Gudikanti Narasimhulu case (1977).
The Supreme Court's order directing the release of five of the accused in the 2G spectrum scam case, and reiterating the fundamental principles that should govern the grant or denial of bail to accused in a criminal case, did not come a day too soon. It is a shot in the arm for those fighting for greater rationale and less arbitrariness in judicial orders. It serves as a warning to the High Courts and the lower judiciary that they should not be swayed by mere popular sentiment while granting or denying bail to those charged with criminal offences. The pronouncement re-establishes the sacred principle that ‘bail is the norm, and jail is an exception' as laid down by Justice V.R. Krishna Iyer decades ago. He, at 97, must be the happiest man to endorse the refreshing order of November 23, 2011 by Justice G.S. Singhvi and Justice H.L. Dattu.
Yes, popular sentiment across India was initially intensely against those involved in the 2G scam. The reaction bordered on jubilation when bail applications in the case were repeatedly rejected by courts. Many right-thinking people were, however, a tad uneasy while this was happening. They did not speak up because they could be easily mistaken for endorsing corruption in public life.
But then, a point was reached very soon when some sections of the public were beginning to wonder whether we were all being reasonable and objective in rejoicing over the continued incarceration of the number of the accused, including a woman MP. A sense of vindictiveness seemed to have replaced compassion and fair play.
Unfortunately, I strongly believe that the media did not play the moderating role it should have, in striking a balance between the need to send the harshest signal to those who had grievously strayed from probity and the time tested tenet of English jurisprudence that no man (or woman) is guilty unless he or she is proved guilty. My conjecture is that this growing body of opinion that the lower judiciary was being cussed in the matter has not played an insignificant role in the two respected Supreme Court judges reversing a dangerous trend of incarcerating persons longer than is justified and sometimes beyond the term they would serve if eventually convicted.
Rustamji's role
I cannot but recall here the major role played in the 1980s by K.F. Rustamji, father of the present Border Security Force (BSF) and member of the Dharma Vira-led National Police Commission (1977-81), in bringing to national attention the scandal of a large number of under trial prisoners who were languishing for years in Bihar jails. This sent shock waves among many opinion leaders in society and the higher judiciary, and there was a certain judicial enlightenment that gave relief to many from arbitrary orders of detention even after charge sheets had been laid.
The latest Supreme Court order highlights how the law on bails should be regulated. It confirms that the primary objective of the criminal justice system should be to ensure that no person accused of a crime is released from jail if there is even the slightest fear that he would make himself scarce upon coming out, thereby paralysing the trial. The next judicial concern should be that an accused person who is bailed out is not in a position to tamper with the evidence that has already been collected and possibly presented to court. Also relevant in my view is an evaluation of the prospects of such a person using his influence or standing to intimidate or subvert an accused who was likely to depose against him. If fear on neither count is present, a judge ought to tilt the scale in favour of the accused.
The gravity of the offence(s) committed by an accused may certainly not be ignored as an input into a bail decision. For instance, if a person is charged with serial rapes or repeated attacks on several members of society and, therefore, shows an unmistakable proclivity to violence, the judge could not be expected to be lenient and unleash him on unwary members of society by granting bail. But when the offence is one involving a white collar crime, physical danger to society at large is seldom conceivable.
The Supreme Court has rightly taken umbrage at a lower court's homily, after dismissing a bail application in the 2G case, on the enormity of the scam and the outrage it had caused to honest members of the public. This particular judge had possibly overstepped propriety in using language that showed a certain lack of balance. This was a case of judicial zeal getting the better of a sense of objectivity and propriety. Mind you, this is, by all accounts, one of our finest trial judges. If he had been found a little wanting in compassion, what to speak of his lesser brethren? I am convinced that Justice Singhvi and Justice Dattu have sent the right signal to everyone in the system that there is need for caution in using language against those arraigned before the system. This is why one often hears complaints from defence counsel that their clients were being subjected to trial by the media. I know from my own experience that the judiciary at all levels is extremely wary of the media, and has said time and again that judges should be circumspect and remain unswayed by what appears on the TV screen or in print. It has also come down heavily on police officers and public prosecutors going to the media too often in pursuit of cheap publicity. In sum, the Supreme Court desires that the enormity of an offence and the attendant hype in the media should not decide the fate of a bail application.
Frustratingly long time
A final point referred to by the two judges relates to the frustratingly long time taken by the system to conclude a trial. Efforts to speed up trials have been of little avail, except in a few sensational cases of rape in Rajasthan and elsewhere. In a number of cases, including the infamous Sukhram case, it is the accused who have been responsible for halting a trial at several points during the progress of court proceedings. Needless adjournments and appeals based on trivial points to higher forums, also contribute to avoidable delays. But when this is not the case, and when a trial is prolonged because of the large number of witnesses to be examined and equally numerous documents to be obtained and cited, an accused person should not be subjected to the penalty of unnecessary detention without bail. This is what the Supreme Court judges have said in this case.
The 2G scam trial involves a mind-boggling number of witnesses and documents and will definitely be a prolonged affair. The relief offered to the accused now by the Supreme Court cannot therefore be frowned upon.
Lessons from the ruling
The lessons from the Singhvi-Dattu ruling are not only for the lower judiciary. The investigating agencies also need to learn and modify their culture. Opposing a bail application mechanically and for form's sake has become the order of the day. This is not always because of cussedness. Very often, it is the product of a fear that if a bail plea is not opposed, the message that would go round would be that the investigating officer has been somehow compromised. It is this apprehension that he would be accused of dishonesty that persuades many an officer to opt for the safe option of countering a bail application with unsustainable and incorrect facts. This will not change unless courts repose greater faith in the honesty of an investigator.
There is also a role for the Public Prosecutor who is, legally speaking, an officer of the court and not the police or any other investigating agency. It is essential that he makes an independent assessment of the pros and cons and assists the court in formulating a reasonable decision. If this does not happen uniformly across the nation, there are bound to be aberrations at the level of the lower judiciary and investigating agencies.
We need to be proud of the objectivity displayed by the Supreme Court in this case. The two judges were not making a new law. They were only interpreting an already existing law for the benefit of those in the system who have strayed from reason and compassion. If the tenets laid down by them sound novel to some uninformed members of the system, let it be so. Only good will come out of such ignorance and new learning.
(Dr. Raghavan is a former Director of the Central Bureau of Investigation.)
