When Union Law Minister Salman Khursheed expressed concern over businessmen being kept behind bars and said this might affect investment, he might not have bargained for the Supreme Court's reaction that his “comments are disturbing.”
Faced with having to decide between granting bail or sending the accused to jail before trial, trial courts have usually plumped for the former, except in serious or heinous crimes.
But the 2G spectrum case, in which some of the accused have been packed off to jail at the pre-trial stage, has set a new trend that trial court judges describe as “changing the rules of the game” and that many legal experts see as a worrying challenge to well-settled principles of law in the grant of bail.
Some senior trial court judges handling sensitive cases, including those relating to economic offences, told The Hindu on condition of anonymity that until now, they granted bail routinely to the accused in economic offence and bank fraud cases.
“We take cognisance of the chargesheet and on the first date of their appearance in response to summons, we release them on bail. During the trial they used to be on bail. If convicted, they would be sent to jail subject to their right of appeal,” said one judge.
Particularly in bank fraud cases involving senior bank managers and officials, the judge said, “we don't send them to jail till the trial is over. The only condition we impose is they must surrender their passports and must ensure their presence during trial.”
But not any more apparently.
“The rules of the game have changed dramatically after the ‘2G case',” said another trial judge. “We are now in a fix whether to grant bail or not as before in bank fraud or economic offence cases. We are afraid not only about ‘trial by media' but also about brickbats from the higher judiciary even if there is merit in granting bail in deserving cases.”
When asked whether a judge could violate the right to life and personal liberty of an accused just to pre-empt possible adverse remarks from the peers, pat came the reply: “Our career is also important for us. Even one blemish in the service records, even if it is not true, will spoil our chances of promotion to higher grade,” not to speak of elevation as a judge of the High Court.
Well-settled principles
Eminent legal experts are unanimous that irrespective of the nature of the cases, trial courts are bound to grant bail following the well settled principles of law. They are of the view that once the court takes cognisance of the chargesheet and the accused appears in court in response to summons, the course available to the court is to proceed as per Section 309 (2) Cr.P.C. by accepting bail bonds from the accused in terms of Section 88 Cr.P.C.
“Right to life and liberty under Article 21 of the Constitution is of paramount importance. Bail and not jail is the rule generally followed, except in heinous crimes and murder cases, where one may refuse bail. Courts must keep in mind that they must give specific reasons depending on the facts in each case as to why bail is being denied despite Article 2,” said eminent lawyer Fali Nariman.
According to him, “the approach of the investigating agencies nowadays seems to be that since some of the high profile accused allegedly manipulate the trial which ends in acquittal let them stay in jail before trial as long as possible. This is not a correct approach.”
Other senior lawyers are also of the opinion that the principles of bail are slanted in favour of the citizen's right to liberty, and wondered if public opinion, including media, were driving the current trend of denying bail.
Though by itself the refusal of bail is not punitive, said former Solicitor-General Harish Salve, “the impression however is inescapable that in current times the societal revulsion against corruption in high places is displacing established principles of grant of bail.”
But if public opinion is the driving force behind denial of bail, and the judiciary wants to be seen as taking immediate steps against corrupt politicians and corporates, that would constitute, said Mr. Salve, “a subversion” of the principles of liberty.
“The freedom of the individual cannot be imperilled on the touchstone of public opinion. That, in a stark form, is the difference between justice by the guillotine in the presence of howling crowds, and the slow but fair system of justice in a democracy governed by the rule of law,” he said.
There would be moments, Mr. Salve said, “when the temptation to jettison time tested values is great in order to be seen to do something visible to those who society feels — and media convicts — of crimes such as corruption.”
Succumbing to this temptation would not augur well for democracy, he cautioned. His solution: fix the wheels of justice so that they move somewhat faster, rather than supplanting the principles of justice themselves.
Legal luminaries are clear that the only justification for refusal of bail would be if there was a possibility that the accused would abscond, or if he was likely to tamper with evidence or intimidate witnesses.
“Denial of bail should not be a form of punishment before trial itself starts. Personal liberty is a precious right and ought not to be interfered with by a premature punishment not contemplated by law. Way back in 1977, the Supreme Court said that the basic rule is bail, not jail. This position has not changed, and the trial courts should fearlessly follow the settled law relating to grant of bail,” said senior lawyer Raju Ramachandran.
The vice-chairman of the All India Bar Association, S. Prabakaran, also pointed out that as a signatory to several human rights conventions, India must respect the right of the accused to seek bail.
“It is sad to note that invariably in all criminal cases,” said Mr. Prabakaran, “prosecution opposes bail to the accused in a mechanical manner. It is an irony that the same prosecuting agencies which take years to complete investigation and file a chargesheet in the court usually put up a stiff resistance against grant of bail on the usual ground ‘investigation is pending'.”
It should be borne in mind, he cautioned, “that if finally the cases end up in acquittal, the loss, ignominy and reputation suffered by the accused cannot be compensated by the judicial system. ‘Bail as a right and jail is an exception' policy should be scrupulously followed by all the courts to avoid over-crowding of jails.”
Another senior advocate, K. Subramanian, also pointed out that courts were bound to follow the settled principles in granting bail in the interests of protecting the liberty of the individual as well to protect society's interest.
Presumption of innocence
Reminding that at the pre-trial stage, every accused person is presumed to be innocent until the matter is finally disposed of by a competent court, Mr. Subramanian said “simply because a person has been charged with an alleged offence, he does not lose his right to protection of life and personal liberty.”
The main consideration in the matter of bail should not be that the accused is detained as a punishment, he said, but “whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.”
