The Supreme Court has struck the right note by voicing its stern disapproval of the tendency among some courts to impose unusual conditions for bail. In the case of Samajwadi Party leader Azam Khan, the Allahabad High Court had granted interim bail in a ‘land-grabbing’ case, but made regular bail contingent on his fully cooperating with the measuring, walling and barb-wiring of a piece of property measuring 13.842 hectares. The allegation against him is that land vacated by a person who went to Pakistan at the time of Partition had been “grabbed” and a university built on it by a trust headed by him. However, in the interim bail order, the District Magistrate, Rampur, was asked to take possession of the property and, after putting up a boundary wall and barbed wire around it, deliver it to the Custodian, Evacuee/Enemy Property, Mumbai. The top court had taken exception to the proclivity among some judges to venture beyond the confines of a given case and imposing conditions that went beyond what were necessary to ensure the presence or attendance of an accused during the trial. It is fairly well-established that conditions for grant of bail have specific objectives: preventing the accused from fleeing justice and precluding any scope for tampering with evidence or influencing witnesses. These objectives are usually secured by directing them to stay in a particular place and asking them to record their presence before a police officer or a court at a specified frequency. Courts are normally not expected to impose any condition that may impinge on other freedoms of the accused or be too onerous for compliance.
It is not uncommon for bail courts to add some unusual conditions in some cases. Being asked to do a spell of community service, apologising to victims, reading a moral treatise or chapters from Mahatma Gandhi’s autobiography are some recent examples. In 2020, the Madhya Pradesh High Court had ordered a man accused of molesting a woman to visit the victim at home and agree to her tying a ‘rakhi’, a condition that appalled the Supreme Court which denounced the attempt to convert a ‘molester’ into a ‘brother’ by judicial mandate. The top court’s restatement of its disapproval in yet another case ought to have a salutary effect on courts below. Similarly, unusually harsh oral observations and the inclusion of personal opinions in judicial orders are also not unknown. Examples are legion of judges wading into matters of religion and culture and making controversial remarks. While sharp observations, whether oral or part of detailed orders, can often help in conveying a sense of the judicial conscience, their perfunctory use in a manner that undermines public confidence in the court’s impartiality is best avoided. A judicial order can be trenchant and temperate at the same time, and it needs no unusual condition or gratuitous obiter dictum to prop up its reasoning.