It took a pandemic of the scale of Covid-19 for India’s Supreme Court to finally decide that single-judge benches will hear special leave petitions, or SLPs, arising out of bail orders in cases where the maximum punishment is up to seven years.
The amendment in the Supreme Court Rules, 2013, is significant, not least because India’s highest court has been rightly criticised for failing to safeguard the liberties and fundamental rights of citizens in the recent past. More often than not, the Supreme Court, as well as high courts, have been easily persuaded by flimsy arguments of prosecution lawyers, including those standing for the Narendra Modi government, in denying anticipatory or regular bail to the accused.
The golden rule of presuming innocence and placing the responsibility of proving guilt beyond doubt on the prosecution has been turned on its head in several cases, especially politically sensitive ones, with courts not hesitating to shift the burden of proof on to the accused.
Is the change enough?
The doubt, however, remains if the Supreme Court amendment in the Rules would be enough to bring relief to hapless citizens who have become victims of a vengeful state enjoying brute power and unlimited resources, and landed in jail on seemingly trumped-up charges.
Will the new system of hearing bail pleas, for instance, provide relief to Safoora Zargar, a pregnant M.Phil student of Delhi’s Jamia Millia Islamia who is lodged in Tihar Central Jail since 10 April on sedition charges for her association with the anti-Citizenship (Amendment) Act protests? The Delhi Police, when asked to explain the charges against Zargar, had later invoked the stringent Unlawful Activities (Prevention) Act, which makes it almost impossible for the accused to get bail.
The amendment must also ensure speedy justice for activists Sudha Bhardwaj, who is in jail for almost two years now in the Bhima Koregaon case, and Anand Teltumbde and Gautam Navlakha, who were arrested last month after the Supreme Court rejected their anticipatory bail plea at a time when the country is under lockdown due to the ongoing pandemic and states have been releasing prisoners to avoid the spread of the coronavirus in jails.
Similarly, the new system must also finally result in the Supreme Court ensuring that its ‘bail, not jail’ rule is enforced without pressure of the state.
What courts have said on bail
In several landmark judgments, the Supreme Court has held that jail is an exception while bail is the rule. Even in cases for grant of anticipatory bail, the court has laid down some guidelines.
In Gurbaksh Singh Sibbia and Others versus State of Punjab, a five-judge Constitution bench of the Supreme Court had in 1980 laid down some guidelines for the high courts and the subordinate courts to follow while dealing with pleas for grant of anticipatory bail.
It had ruled that courts should use their discretion in granting anticipatory bail more objectively, especially since higher courts can always overrule the lower court’s order in case they find that discretion has not been applied properly.
More recently, in January 2020, a five-judge bench of the Supreme Court held that anticipatory bail cannot be for a fixed period, observing it would not be in larger societal interest to limit the power related to liberty of citizens.
That bail is the discretion of the judge and not the right of the accused was aptly put by jurist and then Supreme Court judge V.R. Krishna Iyer over 40 years ago in Gudikanti Narasimhulu and Others versus Public Prosecutor, High Court of Andhra Pradesh. Justice Iyer had observed: “Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely binges on the hunch of the bench, otherwise called judicial discretion.”
But, in the same judgment, Justice Iyer cautioned that “deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution”.
Our courts seem to be ignoring this important observation lately.
What can be done?
Because there are no well-defined, statutory standards on how courts should decide in matters of bail, the scales of justice somehow always seem tilted against the accused, especially one without means.
Nothing explains the extent of the problem better than the Law Commission of India’s 268th report released in May 2017, which was on the subject of bail: “Even with the adoption of an elaborate procedure by the judiciary to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system giving rise to the notion that the bail system is unpredictable.”
But the Law Commission, which had been studying the possibilities of a standalone ‘Bail Act’, dropped the idea even as it underlined in its report that “67 per cent of the prison population is awaiting trial in India”. “Inconsistency in bail system may be one of the reasons for the over-crowding of prisons across the country,” the Commission observed, adding that a majority of undertrials — 70.6 per cent — were illiterate or semi-literate.
“It has become a norm than an aberration… that the powerful, rich and influential obtain bail promptly and with ease, whereas the mass/ common/ the poor languishes in jails.”
The Commission, while recommending amendments to several sections of the CrPC, talked about the need to minimise “unnecessary pre-trial confinement”.
It is high time that a Constitution bench of the Supreme Court goes into the larger issue of bail and frames workable guidelines so as to check misuse of the discretion — wittingly or unwittingly.
Otherwise, the move to have single-judge benches hear bail cases may end up like most government pronouncements – good to read about but with little impact on the lives of ordinary citizens.
The author is a senior journalist. Views are personal.