The law on bail and habeas corpus was the outcome of the atrocities meted out to the common citizen by those in power. This law must be treated as a facet of the natural laws against tyranny and those accused of crime. These laws protect those unequal in power and authority.
Justice V. R. Krishna Iyer, a deep social thinker, worked to eradicate this inequality through his politics, policy pronouncements and jurisprudential legacy. This earned him the Padma Vibhushan. His years of efforts in protecting personal liberty resulted in his famous statement, 45 years ago, in the Balchand case which can be considered India’s Great Charter (Magna Carta), “The basic rule may perhaps be tersely put as bail, not jail.”
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Post the pandemic, we have heard the anguish of the Supreme Court and the Hon’ble Prime Minister about the number of people languishing as undertrials in jails across India. Whilst addressing the All-India District Legal Services Authorities on July 30, 2022, the Prime Minister mentioned that poor undertrials were incarcerated for years, and it is the duty of these authorities to take appropriate steps to give them justice.
‘Process is the punishment’
Former Chief Justice of India N. V. Ramana recently echoed the views of Malcolm Feeley, Professor of Law at Berkeley, that “Process is the Punishment”. In 1979, Prof. Feeley found that both prosecutors and defence lawyers agreed that the pre-trial process itself was sufficient to “teach” the accused a lesson.
The criminal justice system is the guardian angel of personal liberty of the citizen. It is the doorstep to justice. Despite decades of expressing the constitutional values of life and liberty enshrined in Article 21, we only see the situation worsening.
In 1987, the Law Commission had recommended increasing the ratio of judges per million population, from 10.5 to 107 by 2001. Sadly, in 2021 that ratio stood at a meagre 21. The number of undertrial prisoners was a staggering 4.27 lakh, with many thousands of convicts awaiting hearing of their appeals. The judge-to-prisoner ratio is appalling, with a bearing on the pace at which trials or appeals are disposed of, and it is well-nigh impossible to have an early resolution of this problem. Numerous special courts have been set up in the expectation and justification of speedy trials. Yet the criminal justice system is collapsing.
This year the Supreme Court Bench of Justices Sanjay Kishan Kaul and M.M. Sundresh expressed their concern about the slow pace of disposal of appeals against conviction before the Allahabad High Court, which would take 35 years at the current rate of disposal. In the meanwhile, the convicts would have spent time in prison without bail.
The deprival of personal liberty at the pre-trial and post-conviction stage is a matter of grave concern. Courts struggle to clear the backlog of criminal cases which now stand at a staggering three crore, and about 12.5 lakh appeals before the appellate courts.
To add to this calamitous situation are the spate of arrests, wherein on account of the “twin conditions” (i.e. the condition to be satisfied that there are reasonable grounds for believing that the accused has not committed the offence before grant of bail; and that he is not likely to commit the offence while on bail), the accused is deprived of bail. The last time the twin conditions were weaponised was in the 1990s under the Terrorist and Disruptive Activities (Prevention) Act (TADA). The Constitution Bench in Kartar Singh (1994) observed:
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“It is true that on many occasions, we have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA Act with an oblique motive of depriving the accused persons from getting bail and in some occasions when the courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of the TADA Act. This kind of invocation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police.”
Under TADA the offences were punishable with a minimum of five years imprisonment to a maximum of death penalty. However, now the same is applicable to an offence punishable with minimum of fine to a maximum of seven years, for which the ordinary rule is either not to arrest or to grant bail. In this context, recall the words of the late Arun Jaitley in the Rajya Sabha as Leader of the Opposition, with reference to an attempt to introduce twin conditions in the bail provisions in the Customs Act:
“You have bought in a disproportionate provision. You don’t need a hammer to kill a fly, and, therefore, a provision of this kind which you said should not even apply to terrorists, you are saying now in custom offences these provisions will apply. Slowly once you do it in customs offences, in every economic offence, it will start applying. There is no better advice you can give to the Indian business than this, don’t invest in India because if you do, these are going to be the consequences. Please seriously reconsider this.”
Presumption of innocence
In a year when we mark the 75th anniversary of Independence, it is essential to rededicate ourselves to Justice Krishna Iyer’s rule of “Bail, Not Jail”. The true weapon of the criminal justice system is the process of trial and conviction. This process is in consonance with human rights and the presumption of innocence, a rule so deeply rooted in Indian jurisprudence and society.
Considering the predicament the courts find themselves in, the only solution to indefinite incarceration is the immediate release on bail of those awaiting their trials or hearing of their appeals. One may call bail the medication to fight this ailment. If not done, citizens will be at the mercy of the state and the perception of their guilt, and the doctrine of the rule of law will be in jeopardy. It is time for the Supreme Court to direct the release of inmates, as was done in the TADA cases. This will obviate the need for determining whether the accused is entitled to home food, a sipper, a straw, books like The World of Jeeves and Wooster in jail or medical treatment, and save precious time for its primary purpose, trials.
It is true that amendments have been made to provide for mandatory bail for undertrials if they have completed half their sentence. However, it is time to re-examine whether, when it is apparent that the trial will not be completed during such time frame, they should wait for completion of half the period of their possible punishment.
Only in situations of non-compliance of the triple test (i.e. absconsion, tampering, hampering), or if he is an habitual offender, or if there is an imperative need for investigation, may bail be denied. The decision in the Satender Kumar Antil case (2022) is a step in the direction. But without strict implementation, all these efforts will be in vain.
In Arnab Goswami’s case (2020), Justices D.Y. Chandrachud and Indira Banerjee, in an erudite exposition of the ills of the system, observed that courts must be on guard
that the criminal law does not become a “weapon” to harass citizens. They pithily observed:
“As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the solemn expression of the humaneness of the justice system.”
If courts cannot do justice to the presumption of innocence by providing a trial, they do not have the legal or moral authority to keep a person incarcerated as a pre-trial punishment.
(Amit Desai is a senior advocate.)
