Don’t refuse bail by default

Despite the apex court clearly stating that grant of bail is the rule and refusal is the exception, it is not taken seriously

By Author L Ravichander   |   Published: 15th Jun 2019   12:08 am Updated: 14th Jun 2019   10:23 pm

A 20-plus youngster languishes in prison for a case of chain snatching. Caught in the passion of electioneering and its accompanying violence, a group of three men is desperately trying to save itself from arrest. A poor unemployed youth stealing for sustenance is in jail for a period till the charge sheet is filed. The son-in-law lives in eternal scare as to when the police would knock at his door in a false complaint of dowry harassment well drafted by a lawyer and not the harassed victim. A seller of a property who has not got the entire consideration gets arrested in what to everyone else is a clear civil dispute except the police officer. Crimes of all kinds are surely growing in our social order. Intolerance is worn on the sleeve and policing society is an increasing challenge to the law and order agency.

In the midst of this comes a view of a High Court in the south of India where a court reasoned how a chain-snatcher cannot be released on bail. As a lawyer, I am trained to read the signposts and it is worrisome how courts have been in dealing with bail petitions.

Constitutional Position

Article 21 of the Constitution, which guides our social order, provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The Constitution further guarantees protection against arrest and detention in certain cases. The apex court has laid down clearly that the grant of bail is the rule and refusal or in the alternative jail is the exception. Lawyers down the criminal courts and sadly even in many high courts still ask the accused: How are you entitled to bail. The question I would believe should be addressed to the prosecution: why should bail be not granted.

Six decades of our vibrant Constitution and constitutional authorities still believe that their job is to lean in favour of the prosecution and accept the state version. This is alarming in light of the poor success rate of prosecution in our country and also after the apex court has held in no uncertain terms that the very arrest of a person could jeopardise his human dignity.

The theory that courts should not be seen protecting the accused is sublime hogwash. Aesop, the Greek fables author, is believed to have said: “We hang petty thieves and appoint the bigger thieves to public office”. My case of a complaint here is not so much the aggressive prosecution as it is the indulgent judicial system that ducks and refuses to follow the law laid down by the apex court when it is so clear and leaves no room for misunderstanding.

Discretion of Court

In a recent experience, a high court judge heard the counsel at length, was polite in complimenting the senior lawyer but refused bail on the ground that courts have ruled that it is the discretion of the court to grant or refuse bail.

Courts often quote profusely from the FIR to point out that the crime isn’t clearly made out. Ain’t it good enough to have him out of jail? We have clear evidence that he has committed the offence, says the prosecution. “Then why do you want to arrest him without a conviction?” no judge asks.

Dealing with the issue of grant of bail, Justice Lokur said: “A five-judge bench of the Supreme Court way back in 1980 before the arrival of Achhe din said: The legislature conferred a wide discretion on the high court and the court of session to grant anticipatory bail….. because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail.” The bench went on to ask the rhetorical question: “How can the court, even if it had a third eye assess the blatantness of corruption at the stage of anticipatory bail.”

Delving on the larger issue of bails, the full bench observed: “We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438.”

Human Right

While three decades ago our jurisprudence was talking with scorn at even conditions being laid for grant of anticipatory bail, now courts are hesitant to even grant regular bail. Where is the jurisprudential leak or the visible declaration recognising the paradigm shift? Obviously, courts seek mileage in the space of discretion given to them and repeatedly address the question as to why bail should be given rather than why it should be denied. Ask
the wrong question, you are surely not going to get the right answer.

To tread the known path and the road least travelled, let’s revert to Justice Krishna Iyer who opined that “the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.” The last four words of Article 21 are the life of that human right.

Justice Iyer also referred to what Lord Russell of Killowen said and reiterated that it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear for, their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice.

A fast forward would take us to Justice Lokur who from the apex court pointed out the historical background of the provision for bail by going back to the days of Magna Carta to reiterate: “that grant of bail is the rule and refusal is the exception. The provision for bail is, therefore, age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.”

To a system that refuses bail by default under the pretext of discretion what else can be said but Jago Judiciary Jago.

(The author is a designated Senior Advocate)