Ashraf Engineer
August 10, 2024
EPISODE TRANSCRIPT
Hello and welcome to All Indians Matter. I am Ashraf Engineer.
Recently, Chief Justice DY Chandrachud lamented that judges prefer playing safe by not granting bail in high-profile cases when it is looked upon with a degree of suspicion. He said there was a need for “robust common sense” when it comes to granting bail. He said: “People who should be getting bail in the trial courts are not getting it there, as a result of which they have to invariably move the high courts. People who should be getting bail in the high courts will not necessarily get it, as a result of which they have to move to the Supreme Court. This delay compounds the problem of those who are facing arbitrary arrests.” In fact, bail, which should be the norm in most cases, is an issue closely linked to personal and fundamental freedoms. The issue has been in the news over the past couple of years with the Narendra Modi government’s penchant for arresting opponents and critics.
In 2022, the Supreme Court acknowledged in the case of Satender Kumar Antil vs the Central Bureau Of Investigation, or CBI, the inefficacy of India’s bail system and its role in exacerbating the crisis of undertrial incarceration. This put the focus again on the urgent need to reform bail laws to correct systemic imbalances in the criminal justice system.
Believe it or not, more than 75% of India’s prison population comprises undertrials, people accused of a crime but not convicted. They are kept in judicial custody, while their cases are being heard. As a result, the overcrowding rate in Indian prisons is at an estimated 118%.
On paper, India follows what is known as a ‘reformative justice system’. This means, among other things, that it cannot curtail the rights of prisoners and undertrials. It also empowers constitutional courts to protect our fundamental rights.
In recent years, there have been definitive verdicts on the increasing numbers of undertrials and hardships faced by them. Despite that, there have been numerous inordinate delays in hearing bail pleas. This is contradictory to the Supreme Court’s and the Constitution’s assertions upholding personal freedom.
India needs comprehensive bail reform.
SIGNATURE TUNE
Last year, trial courts set the trend by often denying bail indiscriminately, especially in cases of political dissenters as well as activists and journalists. If you look at the governmental responses in such proceedings, it would seem that freedom is a low priority. The Supreme Court itself has not allowed bail in many such cases. Even getting a bail hearing has been tough.
Whatever the Constitutional and legal provisions, the fact is that the granting of bail relies heavily on court discretion. The Supreme Court has provided guidelines for such discretion, underscoring the need for bail while allowing denial based on factors like the gravity of the offence and the likelihood of absconding.
As things stand, courts tend to deny bail or impose strict conditions for it. Frequently, they provide no reasons for the denial. As it happens in all aspects of life, marginalised groups are disproportionately affected by this.
In fact, many undertrials languish in prison even after receiving bail because they don’t have the money or can’t find sureties or meet other conditions.
Data from the Fair Trial Programme in Yerwada and Nagpur shows that existing bail laws fail to address these challenges. In 14% of cases, undertrials couldn’t comply with bail conditions, resulting in continued imprisonment. In 35% of cases, it took more than a month after bail was granted for undertrials to secure release.
There have been several cases in 2023 when the courts stepped up to uphold personal liberty.
On January 28, 2023, the Allahabad High Court granted bail to Javed Pump, chief of the Welfare Party of India, who had been termed the “mastermind” behind violence in Prayagraj in June 2022 and his house unlawfully demolished by the administration. The violence followed Friday prayers when citizens protested against remarks by erstwhile Bharatiya Janata Party spokesperson Nupur Sharma against Prophet Mohammad. While granting Pump bail, the court said that, given the evidence on record and witness’ statements, he did not appear to have provoked any violence.
Later, on March 21, 2023, the Supreme Court expressed shock that some trial courts had failed to adhere to its order in the Satender Kumar Antil vs Central Bureau of Investigation case I mentioned earlier. In this case, there had been detailed directives issued to trial courts based on previous jurisprudence from the Supreme Court.
Expressing frustration at the failure of trial courts to adhere to these directives, the Supreme Court declared that courts should not issue detention orders in a mechanical manner and that such judges should be sent to academies to “upgrade their knowledge”. The Supreme Court also warned that prosecuting agencies, magistrates and public prosecutors would be “hauled up” if they continued to take a stand contrary to its directives while opposing bail petitions.
The court in various instances has also made it clear that bail orders cannot be cryptic or casual and must be backed by reasons considering vital aspects of the case. Also, merely possessing literature that propagates overthrowing the government does not attract the draconian Unlawful Activities (Prevention) Act. Being a critic of the government is no ground to detain a person either and the Enforcement Directorate cannot keep people under pre-trial detention for long.
Whereas there have been several positive instances of the granting of bail in 2023, there have been several where courts faltered too last year. These instances compel us to ask what standards there are to grant bail and why they are disparate in so many cases.
For instance, on April 1, 2023, the Karnataka High Court granted conditional bail to cow vigilante murder accused Puneeth Kerehalli and four others arrested in connection with the murder of a Muslim man named Idrees Pasha. They were accused of lynching Pasha on suspicion of cow theft in Ramanagara district. Kerehalli and the others were charged with murder, assault, criminal intimidation, wrongful restraint and intentional insult to provoke breach of peace. All the accused were associated with the Rashtra Rakshana Pade, founded by Kerehalli, which had links to Hindutva supremacist bodies. They had been denied bail by the trial court, after which they had approached the high court.
On October 30, 2023, a Supreme Court bench denied bail to former Delhi deputy chief minister and Aam Aadmi Party leader Manish Sisodia in an Enforcement Directorate case. The CBI had arrested Sisodia, charging him with taking a bribe for tweaking the Delhi government’s excise policy to favour the liquor lobby. He was then charged under the Prevention of Money Laundering Act. Since then, Sisodia has been in prison, his bail denied by the Delhi High Court and lower courts.
So, despite the guidelines and judgments, our constitutional courts have often failed to uphold liberty.
What are the safeguards the Supreme Court emphasized? Primarily, they were against the arbitrary arrest of a person without evidence of a crime or due process. However, disadvantaged groups, who make up the majority of undertrials, are often excluded.
Data from the Fair Trial Programme in Yerwada and Nagpur shows that, of the undertrials considered, 18.50% were migrants, 93.48% did not own any assets and 62.22% did not have any contact with their family.
This indicates that a significant number have been unjustifiably excluded from arrest protections.
The existing bail system assumes that all those arrested can afford bail. And that financial risk is necessary to ensure that the accused appear in court. This is in sharp contradiction to the principle of ‘bail, not jail’.
In the past, the Supreme Court has noted that bail is a right in several countries. It has noted that courts there presumed innocence until proven guilty and issued orders accordingly. The position in India is no different, the court has observed.
The United Kingdom, for instance, enacted a Bail Act in 1976, which provides for bail to all those to whom it is applicable, except as provided in Schedule 1 of the Act. Schedule 1 is applicable for different contingencies and factors, such as the nature and continuity of the offence.
In the US, the Constitution prohibits “excessive bail”. The Eighth Amendment to the US Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment prohibits the federal government from imposing unduly harsh penalties on defendants, either as the price for obtaining pretrial release or as punishment for crime after conviction.
More than 30 years ago, the US Supreme Court had said: “In our society, liberty is the norm, and detention prior to or without trial is the carefully limited exception.”
The Australian state of New South Wales in 2013 also passed a comprehensive Bail Act to replace a 1978 law. It was considered “groundbreaking” for its time. This law added the concept of “unacceptable risk” in bail cases, referring to whether the accused would fail to appear in court, commit serious offences, and endanger victims, society or the evidence.
At the federal level, Australia has similar legislation, enacted almost thirty years ago, which provides for the grant of bail except in certain cases, such as specific offences or while serving a jail sentence.
Even Mauritius and Malawi have enacted comprehensive bail Acts in 1999 and 2000 respectively.
So, what’s the way forward for India now?
We need an urgent revision of bail laws to ensure they are fair for all, regardless of socioeconomic standing. If we have a bail law such as the one in the UK, it would establish a general right to bail and define clear criteria for such decisions. Legal aid should be provided to undertrials and there should be safeguards against arbitrary arrest.
There should be support programmes to assist undertrials in meeting bail conditions, including financial assistance and social support services.
Bail reform requires robust collaboration between government agencies, legal institutions, civil society organisations and community groups. We also need mechanisms for monitoring and evaluation of bail reform initiatives to assess their effectiveness.
As I said earlier, bail is among the central issues concerning individual liberty. It is a critical component of the criminal justice system. So, bail decisions should aim to harmonise the protection of individual liberties with the demands of justice.
The Supreme Court’s guidelines reassert the importance of transparency and individual rights at a time when they are under severe threat. But they must be backed by steadfast action to create a fair and equitable legal system.
Thank you all for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at editor@allindiansmatter.in. Catch you again soon.
