The rule is bail, not jail

By Sushil Kumar Jain

When Justice H. L. Dattu of the Supreme Court overturned the Delhi High Court’s refusal of bail to five executives accused in the 2G scam last week, he observed that the basic premise of Indian jurisprudence had been attacked – innocent until proven guilty. That grabbed headlines every where, overshadowing an even more pertinent precedent that Justice Dattu had quoted: the ruling of Justice V. K. Krishna Aiyer in the landmark case known as “The State of Rajasthan vs Balchand alias Baliay”, 1977. That judgement, which famously stated that “the rule is bail, not jail,” is course material in law schools.

In India, change is hastened only when the happiness of the rich and powerful is endangered. The 2G accused had been held for various periods starting between February and May, pending the completion of an investigation which is chugging along prudently within the speed limit. They are all prominent politicians, managers and businessmen, and it’s wonderful that their plight has drawn attention to the problematic of bail under Indian law.

People cannot be held without conviction for long spells of time pending the completion of investigations or trial. It is a serious infringement of personal liberty – especially if the accused are eventually found to be innocent, or if their guilt was limited by extenuating circumstances.

Bail is not a right, but it is denied if the accused are likely to tamper with the case evidence if they are set at liberty.

All the accused in this case have the fiscal capacity or the influence to do so.

But bail is a matter of judicial discretion in which many factors are considered.

The capacity to damage evidence is only one. There are many others, including the gravity of the offence, whether the accused was a fugitive from justice when charged, his or her character and reputation and the probability of eluding the courts.

In this case, the Supreme Court felt that the lower court had been unduly influenced by public opinion against scamsters. By the month of October, according to media reports, the enforcement agencies had enough evidence to nail the culprits, who were in custody. At that time, the rationale for withholding bail evaporated. Thereafter, the accused were incarcerated in violation of the spirit of the law of bail.

It is routine for legal injustice to be brought to light by high- profile cases.

The law of negligence and compensation bears the imprint of the case involving the victims of the Uphaar cinema hall fire in Delhi, for instance, while less fortunate victims of other tragedies had been neglected for decades. The victims of the Bhopal gas tragedy, which predated the Uphaar inferno, were largely poor and were given short shrift. And Bhopal is an international case in which the government and the judiciary have been under unrelenting moral pressure to deliver justice. Had the tragedy happened in the heart of a metro, and had the majority of the victims been the cream of Indian society, the story would have been very different.

In the matter of bail, this high- profile case has highlighted the fact that the law of bail – and the necessary discretion which is implied therein – is sometimes applied in letter and not in spirit, without human concern for the ends which the law is intended to secure. But the media coverage of this landmark judgement seems to have missed the wood for the trees.

The most important element, functionally speaking, of Justice H. L. Dattu’s judgement was not the fact that the fundamental principle of innocent until proven guilty had been impugned in the 2G case. In the public interest, even more important was the reference to the 1977 ruling by Justice Krishna Aiyer because therein, he had called for a reappraisal of the law of bail itself, which operates before the guilty are convicted.

The Indian law of bail derives from British law. It is dated and unsuited to India, which bears no resemblance to the UK. Here, the law operates in a completely different milieu and serves completely different public needs. Bail is an ancient European institution which, one suspect, was originally indistinguishable from hostage- taking. It confers freedom on an individual on the deposit of a pecuniary consideration, it being understood that he would make himself available to the judicial authority when required to do so. Failure to comply would cause the consideration to be forfeited, exactly like the life of a hostage.

The crucial question which Justice Krishna Aiyer raised in his ruling is: is a pecuniary consideration necessary for bail? Is it a force of justice at all, in a poor country? Peruse the annual reports of the Law Commission and you will find that in most years, under trials make up more than 50 per cent of the population in jail. The number of people behind bars is usually in the region of 2 lakh, which means that at least 1 lakh citizens are pending trial or completion of investigations.

That is an unacceptably large figure. Worse, most incarcerated under trials have no option.

The poor cannot afford bail — hostage money, in other words — set by courts. The majority earn negligible livelihoods as wage labourers or joint family tillers of tiny farms, the result of the land alienation and fragmentation of holdings which we have seen in recent decades. The former cannot afford bail. The latter can, but at the cost of mortgaging their only source of income. They hesitate to sacrifice the well- being of the family for the freedom of the individual.

In both cases, bail is not an option. Which explains why India has such a huge population of under trials, some of them incarcerated, at state expense, for minor misdemeanours. And since our justice system is slow, they are put away for such a long time that their lives, and that of their families, is destroyed.

This is the disturbing question that Justice Krishna Aiyer had raised in 1977 in “The State of Rajasthan vs Balchand alias Baliay”. He had suggested that a sum of money is not required to ensure that the accused make themselves available to the courts. Indeed, an assurance from panchayat members or prominent citizens should suffice.

But 35- years after Justice Krishna Aiyer’s judgement, the miscarriage of the law of bail with respect to white collar crime in the 2G case has drawn attention to lacunae in application, but again failed to urge the need for legal reform in the interest of the poor. INAV

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