Herald View: ‘Bail, Not Jail’ should be the default setting

Our courts have lately been extremely tight-fisted in granting bail to even those ‘offenders’ whose actions or record offer no credible evidence of being a threat to society or the nation. This, it has been repeatedly said by legal scholars as well as learned judges of our Supreme Court, is a violation of personal liberties enshrined in our Constitution.

It was in 1977 that Justice V.R. Krishna Iyer, ruling in Rajasthan vs Balchand, decreed that ‘bail not jail’ (for the defendant) should be the default setting in legal proceedings. In the forty-five years since, we have seen this principle largely ignored by our criminal justice system. The district courts are wary of granting bail to even the most unthreatening of accused, in violation of their right to liberty under Article 21 of the Constitution.

Ruling on Zarina Begum vs State of Madhya Pradesh in June 2021, Justice Atul Sreedharan of the Madhya Pradesh High Court had said the district judiciary must ascertain whether the accused was a threat to society, had committed a heinous crime or was likely to tamper with the evidence or abscond. In all other cases, bail should be granted without question and the accused should not be made to seek a higher judicial threshold.

Exactly a year after the Zarina Begum ruling, Justice Sanjay Kishan Kaul and Justice M.M. Sundaresh of the Supreme Court have seen reason to write this principle into a new law. Ruling in ‘Satendar Kumar Antil vs Central Bureau of Investigation’, they have called upon the Union government to enact a law on the application of bail, in order that the repeated and routine denial of this fundamental liberty does not turn India into “a police state”.

In their ruling on July 11, the learned judges noted that investigative agencies took their own sweet time joining the dots or even framing charges. The acquittal of the accused after denial of bail for years sometimes was, they said, a clear violation of their fundamental rights, adding that the police today was tending to act as a colonial-era force. The Code of Criminal Procedure (CrPC), first drafted in 1882, continues to be the umbrella code under which this uncertain justice is dispensed.

While India clings to that antiquated law (evidently stuck in a time warp even after amendments), the UK got a Bail Act in 1976, which prescribes the procedure for granting bail. That Act recognises a ‘general right’ to bail. To reject bail, the onus is on the prosecution to show that reasonable grounds exist to doubt that the defendant on bail will surrender to custody, or to believe that s/he will commit an offence while on bail, or interfere with witnesses or tamper evidence or otherwise obstruct the course of justice.

In India, on the other hand, rights activists critical of governments, journalists and others are being denied bail on all sorts of spurious arguments made by the police, untenable even in our own outdated laws.

By and large, our courts have tended to look at bail as a privilege, to be granted exceptionally to the most deserving—on grounds that seem opaque to the ordinary eye. When the judicial system acquiesces in unfair incarceration, it signals that everyone is vulnerable. As senior advocate Sanjay Hegde once wrote: ‘Freedom is indivisible, and those charged with its protection often fail to understand that whatever they permit against citizens of the least agency and resources can later be done unto people like them.’

(This was first published in National Herald on Sunday)