JOIN USLiberty: The casualty of fewer bails
Till the 1980s, petitions to the Supreme Court (SC) by undertrials seeking bail were rare. Today, the daily cause list of any Supreme Court bench, dealing with criminal matters, has a large number of bail petitions by undertrials.
In Hussain vs Union, the SC gave directions to expedite hearings in granting bails. In an earlier case in 2014, the court directed that for offences punishable up to seven years, bail should be the norm.
Yet, jails in India remain overcrowded. The SC has emphasised this in Satender Kumar Antil vs CBI, noting that, “two-thirds of the inmates of the prisons constitute undertrial prisoners.” It added that the principle of bail being the rule and jail, the exception was being diluted.
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Presumption of innocence is part of our constitutional right as enshrined in Article 21 of the Constitution of India, Article 14(2) of the International Covenant on Civil and Political Rights and Article 11 of the Universal Declaration of Human Rights.
Even though the SC has directed courts and authorities repeatedly, arrests are arbitrary and remand is often granted mechanically.
While legislation specifically meant to grant bail, like the Bail Act, may someday be a reality, there is an urgent need for reform in the power to arrest. While the Code of Criminal Procedure (CrPC) was amended to introduce Section 41A that mandates cops to serve pre-arrest notice, police end up invoking other offences with higher punishments to circumvent this mandate.
The CrPC awards vast discretion to police officers to arrest and to courts to grant bail. This discretion is often exercised ad hoc, owing to external considerations such as media glare and populism. It is high time for legislative reform.
The Bail Act may take time but till then it is open for the Supreme Court to issue specific guidelines for police remand, judicial custody remand and structured guidelines for granting bail.
While it is essential to have reform and guided discretion in the matter of arrest and bail, it is also time for constitutional courts to deal with procedural violations with the utmost sensitivity and not allow investigating agencies to escape blatant violations. Liberty is to be protected by conformity through a procedure established by law. If we continue to turn a blind eye to procedural infractions and dilute safeguards, the criminal justice system will continue to do a great disservice to the right of liberty.
Similarly, it is time to have delegated legislations, whether standing orders, regulations or rules, to restrict and regulate arrests by police and investigating agencies across the board. Consequential amendments to police rules, the Enforcement Directorate manual and the CBI manual are essential. Else, liberty will be the casualty and Article 21 will become a dead letter.
(The author is a senior lawyer practising at Supreme Court)