By Sujit Bhar
Dumping the various characteristics of judgeship in a cauldron and churning it vigorously, the one thing emerging like amrit is the soul of the judge. In a recent interview, Chief Justice of India (CJI) DY Chandrachud mentioned a critical aspect of this profession—service to society.
The judiciary is a service. It is a service for greater good, without the apparent selfish strings that the executive/legislature attaches. Every action of the government is tied to downright disparaging conditions. The judiciary is supposed to be free of that, therefore expected to be able to deliver judgments without fear or favour. More importantly, though, it is a quest, a mission, as Justice Chandrachud put it, to spread the sense that there is a robust judicial system in place in this country to support an individual’s struggles through life.
That is how the judiciary is supposed to reach down to the most impoverished, nondescript people who have never found reason for felicity, who have learned to wear their daily sufferings as jewels of their lives. That was why the system was put in place and that is why we talk about equality of justice.
Justice Chandrachud, in his usual, inimitable style and candour, was impressive. He handled a barrage of critical questions with a straight bat and in the end the viewer/spectator was satiated. Or was he? There remains a problem. Such candour actually raises a few more questions that might need a different set of explanations. These are questions that sometimes emanate from the base, from the smelly guts of Indian society, leading to a complete distrust of the very judicial system that intends to send the “abhay” signal. One cannot deny currency to the belief that justice isn’t equal, after all.
During his interview, the CJI mentioned how important it is for the Supreme Court to take up issues supposedly as small as bail. He pointed out that it—a bail plea—isn’t that small, really, because this is a case of personal liberty. Often we have found “high profile” bail cases being dealt with by the Supreme Court and bails granted with alacrity. That is great, but maybe this somewhat flies in the face of a reality in which a sea of undertrial persons languish in Indians jails.
The CJI acknowledged this, and that was specifically why the bail issue was brought up. But while certain high profile bail pleas being handled with alacrity may try to set a precedent within the judicial system, it does not in any measure ameliorate the pains of the innumerable, helpless thousands who are behind bars for absolutely no fault of theirs. Personal liberty is a phrase that has not been heard of in those far boundaries of humanity.
Here is the rub: When those few high profile bail cases taken up quickly by the Supreme Court provides the backdrop to the sufferings of the marginalised non-criminals in custody, to those who, probably, had their first two-meals-a-day within the confines of purgatory, it hurts somewhere very deep. Oftentimes, the power corridors of Delhi remain too far away from the lawless, lawyer-less lands, where every police action is based on a scorched earth policy, leaving no trace of atrocities committed by the arm of law.
The Guidelines
Before moving further, one needs to examine certain guidelines that the top court had laid down in its landmark judgment in Satender Kumar Antil vs Central Bureau of Investigation & Anr. That was where the Court laid stress on personal liberty and constitutional guarantees available to an accused under criminal jurisprudence. What also needs to be mentioned here is that the Court observed that while these discussions and findings are meant to operate as guidelines, each bail case is to be decided on its own merits. There is no one-size-fits-all system.
The guidelines differ with respect to different categories of offences and also come into effect only if (a) the accused was not arrested during the investigation and when (b) the accused co-operated throughout in the investigation, including appearing before the investigating officer whenever called.
Thus two basic criteria are applied here:
(a) Seriousness of the charge and
(b) Severity of punishment.
These preconditions are important, but we need to know the four categories. They are:
A. Offences punishable with imprisonment of 7 years or less not falling in category B & D.
B. Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
C. Offences punishable under Special Acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA (Section 43D(5), Companies Act, 212(6), etc.
D. Economic Offences not covered by Special Acts.
With the above in place, the guidelines follow:
a) Ordinary summons at the 1st instance/ including permitting appearance through lawyer.
b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued.
c) NBW on failure to appear despite issuance of bailable warrant.
d) NBW may be cancelled or converted into a bailable warrant/summons without insisting on physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.
CATEGORY B/D: On appearance of the accused in Court pursuant to process issued bail application to be decided on merits.
CATEGORY C: Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS Section 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.”
NOTE: Category A deals with both police cases and complaint cases.
Two Levels
Hereafter, we need to deal with the issue of bail at two levels. Having detailed the above, we realise that in each case, some legal procedure has been followed to a certain cognisable extent. Complaints have been filed, charges have been levelled against the accused and the nature of these bail guidelines roam around these basic assumptions.
Even within this, according to a National Crime Record Bureau (NCRB) data, around 48% economic offences in 2021 were yet to see charge sheets filed at the time of collection of data. The number of economic offences rose by around 20% in 2021.
That is one boundary of data. However, there are areas where data loses track of time and space, where allegations are verbal, and police lockups seem beyond all judicial limits. These are people who may have been “picked up” during “raids” and bundled into the lockups, without charge, without explanation, without any recourse to law. And the numbers are large. These are people who will probably never be presented before a magistrate.
Here, all the guidelines pale into insignificance. How does a court even give bail to a person who has not been officially arrested, to someone who has not even been told what his/her fault was in the first place, leave alone any formal FIR being lodged, leading to a possible charge sheet? These are the real legal orphans of the country.
At this level, basic jurisprudence breaks down into small, amorphous pieces and neither logic nor law can have any say.
The other level too involves devastating poverty and social neglect, but at least some level of legal action has been taken. These are people languishing in jails with neither any possibility of being acquitted (because their cases drag on through lifetimes), nor even bail. They will never be able to afford the bail bond money, even if the lawyer acts pro bono.
Through The Foliage
The top court, however, seems to be moving through all such dense foliage. Recently the bench of Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah and Aravind Kumar asked the centre to consider dropping trial proceedings to see if it can let off those undertrial prisoners who are first-time offenders, were involved in less serious offences and have already spent substantial time in jail. This would not be a precedent, but a one-time pardon, maybe on the occasion of the 75th year of Independence.
The basic objective behind this seems to be to decongest the already overcrowded jails. A similar situation—only for bail, though—was carried out during the pandemic and it had been very successful. In the present case, a pardon should be in order. The bench said that people who are accused of offences punishable up to seven years of jail term and have spent half of the sentence in jail be released as it would not only declutter the jails, but also let the judicial system breathe, with such cases being removed from the court’s docket.
Festering Wound
This, definitely, is a great move that could ease access to law for those who need it more. However, the basic bail issue itself stays on like a festering wound. Even if you disregard those languishing in police custodies, sans any legal handcuffs, then the nearly 75% of the incarcerated—the undertrials—are also a problem to worry about. Surely, these will not be over in quick time, but with the top court’s continuous prodding a solution may be arrived at.
One has to sift through reams of false cases attributed to people, just because arrests were to be made for the progress of some fact finding mission. Blanket bail is not possible, and the police and such other agencies have always been adept at sticking so many different sections of the IPC and other acts to a person that the very process of bail becomes a Himalayan task.
Hence, possibly the best way is to start at both ends. Try and undo the Gordian knot of bails and see to it that future complaints incorporate only relevant sections of relevant acts and not a tutti-frutti of complaints.
It is a long journey, but, maybe the Supreme Court has finally taken the first step. In time, we might overcome, in time the soul shall survive.
—The author writes on legal, economic and corporate issues, apart from social commentary. He is Executive Editor at India Legal