Shivang Tripathi
Advocate, Allahabad High Court
Since time immemorial, there has always been a tussle between ‘societal interest at large’ and ‘individual interests’. It is because of the existence of “societal competitiveness” and “the race for subsistence” and quite interestingly, all of this forms the core of penal jurisprudence in a country. The Indian constitution has always supported the idea of ‘Salus Populi suprema lex’ i.e. let the welfare of the people be the supreme law and this proposition, in itself, reflects the State’s responsibility to carve out a balance between ‘societal welfare’ and ‘individual/personal liberty’.
‘Personal liberty’, as a concept, has witnessed a continuous evolution by way of judicial precedents backed by the “Golden Triangle” of Articles 14, 19 and 21 of the Indian Constitution, and amidst this transformational journey, it was initially interpreted in the narrowest possible manner by the Apex Court in A.K.Gopalan case[1], wherein it was equated with mere “physical liberty” i.e. one which deals only with a person’s life and limb. This was the juncture when the significance of it was felt for the first time, and this entailed judgments like Kharak Singh[2] and Menaka Gandhi[3] wherein we could observe the expansion of the horizons of ‘personal liberty’ when the Hon’ble Apex Court went on to hold that “personal liberty meant much more than mere animal existence”.
The most common punishment under penal laws is ‘imprisonment’, but interestingly, this measure is not only used for punishing the accused, but rather it also caters to the purpose of conducting a ‘Fair Trial’ by keeping in custody several undertrial prisoners, and when we look into the remedies against such measure, especially with respect to the ‘undertrial prisoners’, we come across concepts like ‘Bail’, ‘Parole’ etc.
According to Black’s Law Dictionary, Bail is defined as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.”
According to Halsbury’s Laws of England “..the effect of granting bail is not to set the defendant (accused) free, but to release him from the custody of the law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned.”
There are mainly four types of bail in India; Default,Regular, Interim and Anticipatory Bail.
Until today, there lies no provision, formulating any sort of criteria or checklist which could guide the Courts in deciding upon the grant or rejection of Bail which is why we have always been relying upon the so-called ‘judicial discretion’ and like the inherently ambiguous nature of the term ‘discretion’, even ‘judicial discretion’ reproduces myriad kinds of interpretations. In Narasimhulu v. Public Prosecutor, Justice Krishna Iyer remarked that “The subject of bail belongs to the blurred area of the criminal justice system and largely hinges on the hunch on the bench, otherwise called judicial discretion.”
No discretion should result in arbitrariness and its exercise should never be done in a vague and fanciful manner. With utmost respect to the Indian Judiciary, quite recently, the Indian Penal Jurisprudence has been witnessing certain ‘closed-door’ biases wherein there have been instances that substantiate the fact that most of the high-profile and white-collar criminals are granted quick Bail, unlike the underprivileged and poor populace. This has resulted in a series of ‘Reverse Victimization’ and the scales of justice have been tilted towards the ‘favorable/privileged’. Factors like ‘illiteracy’, ‘vagrants’, ‘destitution’, and ‘lack of awareness’ reflect the most important roadblocks to ‘Fair Trial’ and ‘Justice’.
Based on 41stReport of the Law Commission of India, provisions relating to bail were further adjusted and consequently streamlined. Sections 436, 437 and 439 of CrPCwere suitably channelized in 1973. The data collected regarding prison population in India represents a grim scenario. It indicates 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 and giving rise to another set of challenges to the Prison Administration and ‘State’ thereto.[4]
‘Presumption of innocence’ and the ‘duty of the prosecution to prove the guilt of the person accused of an offense’, form the golden thread in criminal law jurisprudence.[5] The guideline that bail be the general rule and jail an exception, is the “logical and consistent adaptation of the principle of presumption of innocence to the pre-trial stage.” The principle is enshrined in Article 11 (1) of the Universal Declaration of Human Rights, 1948 (UDHR), Article 6 (2) of the European Convention on Human Rights (hereinafter ECHR), Article 48 (1) of the Charter of Fundamental Rights of The European Union (hereinafter EU Charter) and Rule 111 of the United Nations Standard Minimum Rules for The Treatment of Prisoners also known as the Nelson Mandela Rules.[6]
Critical Analysis of the recommendations of Law Commission of India in its 268th Report
Instead of enumerating and analyzing all the recommendations, the crucial ones require the utmost attention. Firstly, the Commission suggested an amendment in Section 41 of CrPC, making it mandatory for the Investigation Officer to record the reasons in the Case Diary and Daily Diary Register before he proceeds to make the arrest and IO should also obtain written approval by the Officer in Charge of the police station. It is a praiseworthy recommendation but once again it, prima facie, would work only in letter and not in spirit because more than ‘transparency’ what is required in such cases is ‘sheer reasonability’ and this is where the penal infrastructure is losing grounds.
Secondly, it recommends an amendment of Section 50 of the CrPC. This provision mandates ‘written communication of grounds of arrest’ to the arrestee. This puts up a pragmatic problem with respect to the language used by the arresting authority, for example when the arrestee is illiterate, semi-illiterate or not versed in the local language, which is why it is suggested that only such language should be used which is cogent enough to be understood by the arrestee. This shall definitely lay down some ground-level transparency in the system.
Thirdly, with respect to provisions relating to ‘default or statutory bail and remand’ i.e. Section 167 CrPC, it has been time and again clarified by the Apex Court that in the absence of any special permission from the Magistrate and non-completion of investigation within the statutory period, it becomes a kind of ‘right’ to default bail and this needs to be given due weightage so as to effectively safeguard the essence of ‘personal liberty’ and this would also go on to enhance the State’s accountability ratio, which of course substantiates the welfare principles.
Fourthly, it is recommended to amend Section 309 of CrPC. It highlights loopholes existing in sub-section 309 (2) of CrPC, which deals with remand of the accused after cognizance of the offense has been taken by the court. Where the trial is adjourned or constantly delayed, the Court may remand the accused if he/ she is in custody. This provision nowhere mentions that the Magistrate may also release the person from custody. This creates the problem of suggesting that remand under the provision is mandatory in nature, which shall definitely dilute the legislative intent and hence requires due consideration. The Commission recommends that section 309 (2) be amended and an explanation be added that in case an accused is in custody and the trial is getting postponed/ adjourned, the Court shall release him/her on bail or remand the accused to further custody, for reasons to be recorded in writing.[7]
With respect to the determination of conditions attached to Bail, the Commission suitably recommends: “in determining whether the person is likely to abscond, the court should look at factors other than monetary considerations that may keep the person accused of an offense within the jurisdiction of the court, such as the presence of family, job, other roots in the community, etc. However, an accused person should not be denied bail only because he is a migrant in the city of arrest and does not have ties with the local community. The appearance of such a person may be enforced through other means, as for example through informing the police of the place of ordinary reference of the person …”
To conclude, it can be safely observed that the concept of Bail initially commenced as a ‘matter of right’ where we used to believe that ‘bail is right, and jail exception’ but somewhere in due course the entire legal infrastructure including the enforcement agencies failed at some fronts which is why we still account for roughly 67% of prisoners who are still undertrial and this raises a humanitarian question upon the domestic laws, and the resultant over-crowding in jails somewhere contributes to the misery of all the prisoners because the increasing density of prisoners causes lack of amenities.
Somewhere we lost track of the difference between a ‘suspect’, ‘accused’ and a ‘convict’. The chain of accountability broke at some point and due to some man-made mistakes, we are continuously failing the aspirations of a chunk of incarcerated undertrials, who, ironically, are still a human being and where on one hand we believe in sending a message to the society at large citing principles of public safety, we are losing faith of a substantial proportion of citizenry and this ‘blurring faith’ shall one day become a cause of distress to many.
REFERENCES:
[1]1950 AIR 27.
[2]1963 AIR 1295.
[3]1978 AIR 597.
[4]268th Report of the Law Commission of India.
[5]Ibid.
[6]Ibid.
[7] See https://timesofindia.indiatimes.com/blogs/straight-candid/part-7-indias-bail-jurisprudence-need-for-urgent-comprehensive-revamp/ (visited on 4th June,2020, 11 AM).
