A shot in the arm for rule of law

The Supreme Court’s recent observations on indiscriminate arrests and the reluctance to give bail are pertinent

July 25, 2022 12:15 am | Updated 01:22 am IST

In Satender Kumar Antil v. Central Bureau of Investigation (2022), the Supreme Court expressed its unhappiness with the current state of India’s criminal justice system. The court said there was scant regard for the violation of basic human rights. It was categorical that indiscriminate arrests are indicative of a colonial mindset and create the impression of India being a “police state”.

It is not as if the court said something that has not been said before. But the vital message that agencies must be civilised towards both crime suspects and convicts was clear. The court’s words were emphatic and practical. The highlights of the court’s observations were the accent on safeguarding basic human rights, the emphasis on quickening the pace of trials and the suggestion for a new Bail Act, analogous to an existing U.K. legislation.

The court’s role

The gravamen of the court’s charge was that law-enforcement agencies make far too many arrests in violation of basic human rights. The fact, however, is that members of the lower judiciary often ask investigating officers why they did not arrest some suspects while arresting others. Often, courts suspect that the police lack integrity in discriminating between the accused. One often wonders whether a Magistrate or judge has the right to question police discretion in the matter, unless there is prima facie injustice to the person arrested. Caustic comments by courts evoke fear in the lower echelons of the police and drive them to take impulsive and questionable action even where arrests are not warranted. Judges sometimes go into the nitty-gritty of an ongoing investigation, which is undesirable if police action has to be balanced.

Arrest and confinement to police custody or judicial custody often smacks of vindictiveness. An average police officer invariably believes that it is only in the rigour of custody that a suspect will cough out the truth. This is unfortunate. It is distressing that the practice of arresting suspects at the drop of a hat remains the style of policing in our country. The need for a cultural change at all levels in the police has never been felt more than now. Justice Krishna Iyer had said in State of Rajasthan,Jaipur V. Balchandalias Baliay (1977): “The basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court.” That bail is the rule and jail the exception has been reiterated in several judicial and other forums. This has been violated by the police in cases where they enjoy discretion as well as by the lower courts, some of which are downright rude to those arraigned before them. The Supreme Court’s latest order should awaken their conscience and make them understand that when they grant bail, they are not doling out charity but implementing the dictates of law.

The apex court’s reference in the Satender Kumar case to the Bail Act of the U.K. is appropriate. The essence of that law is that arrests should be rare, and bail provisions should be uncomplicated even to the unlettered citizen. There is a provision for electronic surveillance of those released on bail. This is something novel, but practicable, at least in urban India. The court’s recommendation that India should consider a similar enactment is welcome. One cynical view, however, is that existing legal provisions, especially those of the Criminal Procedure Code, are adequate to curb the overzealous practices of law enforcement agencies.

Problem of overcrowding

The Supreme Court also drew attention to the problem of overcrowding of prisons, which has attendant issues such as corruption, crime and hygiene within prisons. An overwhelming majority of the inmates are undertrials. There are two ills here. One, there is an insistence during trial on judicial custody, which is different from what prevails in many countries, especially the U.K., where grant of bail is much more liberal. And two, court proceedings are tortuous as a result of the collusion between principal players in the scene. This situation has been discussed with only a marginal impact.

Ultimately, it all boils down to a change of mindset, which cannot happen unless the political and bureaucratic leadership are convinced of the role of ethics, which is in short supply these days in public life, in shaping and administering the criminal justice system. The inescapable impression of a majority of Indians is that we have a system that is arbitrary and cruel and this must change.

R.K. Raghavan is a former CBI Director and currently Professor of Criminal Justice and Policing at the Jindal Global University, Sonipat, Haryana

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