Out of Jail

“It is a case of telephone misuse. Why do you want to arrest him? Why do you want him in jail?” asked a judge of the Supreme Court on 12 August, as it heard the bail plea of former Telecom Minister Dayanidhi Maran. In 2013, a case had been registered against Maran for allegedly installing 360 BSNL telephone lines at his Chennai residence. He had been India’s Telecom Minister then, and, according to the FIR, the lines were used for Sun Network, his family-run media business. An anticipatory bail plea by Maran had been rejected by the Madras High Court. A day later, he approached the Supreme Court, which granted interim protection from arrest. The judgment got mixed reactions.

“The real issue in corruption cases is who the wrong-doer is,” according to S Gurumurthy, a commentator. “The higher the official, the stricter the rule should be. But judicial trends seem to be the other way round. A judge’s duty is to punish the offender, and doubly punish those who have a constitutional duty.”

On 18 July 2012, workers at a Maruti- Suzuki plant in Manesar, Haryana, were part of a violent agitation that resulted in a company executive being killed and several others injured. As many as 147 workers were arrested and charged. They had spent two-and-a-half years in custody before 77 of them got bail in March this year. “The prosecution couldn’t bring evidence against them. Not a single prosecution witness has identified any of the 77 workers as being part of the alleged mob. It was unconstitutional as it infringed their fundamental right to personal liberty. But even then, it took such a long time,” says Vrinda Grover, an activist lawyer.

Several recent cases have led to the widespread perception that bail is available easily only to those with money and influence. This has acted as a trigger for the Government to initiate a new Bail Act that could revamp the system to ensure that it is equitable in practice. In an internal note, Union Law Minister DV Sadananda Gowda wrote to Law Secretary PK Malhotra, ‘All is not well with the way cases relating to grant of bail are being handled, and while those with resources are able to secure relief, the poorer lot languish in jail.’ Gowda, a lawyer himself, noted that even though the Judiciary has an elaborate procedure to deal with the granting of bail, there is still a general perception among people that its grant or denial is unpredictable. ‘The bail system is linked inextricably to property and financial well-being of the accused,’ he wrote.

The Law Secretary has referred the matter to the Law Commission, asking it to submit a report in six months. In the referral note, Malhotra says, ‘Discretion to grant bail is not exercised properly.’ Once the Commission presents its report, the Government will draft a piece of legislation and put it up on the Law Ministry’s website for public review. After this, a Bail Act would be introduced in Parliament. Its main objective would be to curtail the discretionary power of courts by clearly defining the conditions under which bail is to be granted. Senior lawyer Aryama Sundaram welcomes this. “The general public opinion, based largely on perceptions created by the media, is that if a person is released on bail, he has been acquitted, which is not true. This has started affecting decisions. If the Government is thinking of correcting this, it is right, because we have left too much to the subjective satisfaction of the court and public.”

The term ‘bail’ has not been defined by Indian law, but offences have been classified as ‘bailable’ and ‘non-bailable’ under the Criminal Procedure Code. While bailable offences have no ambiguity, it is the non-bailable ones that make space for discretion. Says senior lawyer Prashant Bhushan, “The law clearly says that bail and not jail should be the rule. But unfortunately, the courts today don’t follow it. There are three conditions under which bail may be rejected—if the court thinks that accused wouldn’t appear in the court, if the accused can tamper with the evidence, and if the accused is suspected of committing a heinous crime.”

Grover also blames the Judiciary for the current situation. “The law of bail has not been applied uniformly,” she says. “The manner in which discretion is applied has put justice out of reach for marginalised sections of society. Both the police and courts know that these cases won’t stand in the longer run. Hence, they put the person behind bars and just delay the proceeding to have the person in prison for as long as they can.”

A major reason for considering a Bail Act is the growing number of under- trials lodged in jails. By a Supreme Court estimate, they account for 66 per cent of all prisoners in the country. The National Crime Records Bureau puts the number of undertrials at over 278,000. Last September, then Law Minister Ravi Shankar Prasad had met Home Minister Rajnath Singh to prepare a blueprint on the release of undertrials on bail. Relief was intended for those who had already spent half their offence’s maximum punishment in prison.

On 5 September 2014, a three-judge bench of the Supreme Court passed an order to identify and release undertrials across India, starting October 2014. But Bhushan says the actual execution of the order has been unsatisfactory.

Gowda admits that the going has been slow: “There are delays in hearing bail applications due to heavy workload in the courts, the cumbersome procedure adopted for hearing and deciding bail applications, the accused not being able to produce sureties, and also lack of awareness among underprivileged and marginalised sections of society.”

In public perception, this stands out in stark relief with someone like Salman Khan getting bail overnight despite being convicted of a crime. In May this year, the Bombay High Court had suspended Khan’s five-year sentence in his 2002 hit- and-run case to grant him bail pending an appeal against his conviction. The judgment invited severe criticism because it had taken 13 years for the trial court to convict him, and after that, he was free again within hours. “I have a serious problem with bail given after a person is convicted,” says senior lawyer Rajiv Dutta. “I think any convicted person should be held under custody. The maximum the courts should do is hear the appeal within a fixed time period to deliver the final judgment.” He agrees that proper rules are needed for bail, and if the Government comes up with something that serves the purpose, it would be appreciated.

Dutta says the law also needs to look at the rules of policing. “In India, the police in most of the cases don’t know when they can arrest a person,” he says, “It is not the police officer who wants the person to go behind bars. It is those who have filed the FIR, or it’s pressure from the political or some other class that forces him to make an arrest.” He says the relief that the police grant is also arbitrary. Sometimes they free someone all too easily and they often do not do it only because of pressure from society and the media.

Some senior lawyers, like KTS Tulsi, however, do not want any change in the current system. “Bail should always be at the discretion of the court. Crime is a human activity and so should the adjudication be,” Tulsi says. “You can’t set a mathematical formula to apply to all and sundry. The facts of two cases might be similar but not the same. Even in murder, there are several types of it.”

However, he agrees that the Judiciary needs to be mindful about ensuring equal justice for all. “Criticism is most welcome, as it also guides the Judiciary in analysing popular sentiment in the country. But to create a new system would make it more complex,” Tulsi says.

Gowda says his ministry is treading with care on the Bail Act. “We have arrived at this point after getting suggestions and opinions from different sections of society,” he says. “The bail system in India as it is practised needs to be studied in detail.”

The Congress says it will decide its stand once the new policy is spelt out. “Let’s await the text of the law. Clarity and precision is needed on this part of the law, which has completely been left to the court’s discretion,” says senior lawyer and Congress spokesperson Abhishek Manu Singhvi. “Similar clarity is also needed in coding the punishment, which again is left to the court, and there are instances where unequals are treated equally and equals are treated unequally.”

bailDV Sadananda Gowdalawlegal reformnon-bailableSupreme CourtUnion Law Minister