There has been a significant rise in the bail matters before the higher judiciary for the past few decades. We often come across the news of some or the other bail plea finding its way to the Supreme Court. TANISH ARORA analyses whether the Supreme Court was originally intended to be hearing so many bail pleas throughout the year, and if not, then what are the reasons behind the trend.
THE Delhi High Court ruled in October last year that the right to seek default bail is part of the right to personal liberty. Personal liberty, in turn, is an essential ingredient of the right to life guaranteed under Article 21 of the Constitution. The same was upheld by the Supreme Court in the landmark Kharak Singh case of 1962. Bail is thus a subject integral to safeguarding the right to personal liberty.
As stated by the Supreme Court in the case of Sanjay Chandra vs. CBI (2011), the primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Multiple provisions of the Criminal Procedure Code [CrPC] and other special laws govern the bail law in India. Under Section 436 of the CrPC, an accused for a non-bailable offence is entitled to bail as a right. As per section 436A, where a person has, during the period of investigation, inquiry or trial of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, they shall be released by the Court on their personal bond, with or without sureties. The same emanates from the landmark judgment delivered by the Supreme Court and authored by Justice V. Krishna Iyer, in Motiram & Ors. vs. State of Madhya Pradesh (1978).
As on December 18, 2020, 1,072 cases relating to bail and suspension of sentence were pending at the Supreme Court. These include 931 petitions seeking bail/interim bail, and 141 cases seeking suspension of sentence. The number of pending bail applications before the high courts is 91,568, and the same is a whopping 1,96,861 for the district courts.
Apart from this, an accused for a non-bailable offence can seek bail under Section 437 of the CrPC which empowers courts and officers-in-charge of the concerned police station to grant the same. Although this is marred by certain restrictions.
In simple words, bail can either be sought before arrest (in anticipation) or after the arrest, depending upon the nature of the offence.
Also read: Is bail a right or a privilege?
Clogging of bail matters in the higher judiciary, and the vision of lawmakers
Today, courts in India, especially the higher judiciary, are clogged with bail matters. As on December 18, 2020, 1,072 cases relating to bail and suspension of sentence were pending at the Supreme Court. These include 931 petitions seeking bail/interim bail, and 141 cases seeking suspension of sentence. Further, as noted by Justice D.Y. Chandrachud in Arnab Manoranjan Goswami vs. State of Maharashtra (2020), the number of pending bail applications before the high courts is 91,568, and the same is a whopping 1,96,861 for the district courts.
Now, in order to understand whether the same is something that the higher judiciary was originally envisaged to be dealing with or not, it is important to note the stance of the Constituent Assembly. It is true that the lawmakers intended that the rules for granting bail be determined by the Supreme Court. During the Constituent Assembly Debates, Naziruddin Ahmad pointed out that with regard to rules for the grant of bails, whether bail should be granted or not is a matter for the legislature, but the exact regulation of rules relating to the granting of bails, whether an application is to be made, whether a surety is to be taken, and so on and so forth, are matters for the internal administration of the Supreme Court.
However, it must be noted that the Supreme Court is the highest Constitutional Court of the country. It should ideally focus on constitutional matters, as also pointed out by former Additional Solicitor General of India Pinky Anand and Supreme Court advocate Saudamni Sharma. In the words of Justice J. Chelameswar, Dr B.R. Ambedkar would not have imagined the Supreme Court hearing bail pleas, as it was intended to decide only constitutional matters. Yet, in 2014, a mere seven per cent of the judgments passed dealt substantially with constitutional matters. A more recent study too found constitutional matters, along with public interest litigation, to constitute less than ten per cent of the Supreme Court’s output.
Also read: Explained: Supreme Court’s guidelines on grant of bail after chargesheet is filed
It is clear that though the rules for granting bail come under the jurisdiction of the Supreme Court for the purposes of Article 121 of the Constitution, the lawmakers did not envisage that the higher judiciary would be clogged with bail matters to the extent that it would by far outnumber the judgments delivered in constitutional matters. Therefore, bail, as important a matter of fundamental rights as it is, should not become an impediment in the functioning of the Supreme Court as it was intended, that is to deal with constitutional matters.
In 2014, a mere 7 per cent of the judgements passed during dealt substantially with Constitutional Matters.
There are multiple reasons why we are in this predicament. It was clearly pointed out by Justice Chandrachud in Arnab M. Goswami that high courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. He even said, “There has to be a message to High Courts- Please exercise your jurisdiction to uphold personal liberty. We are seeing case after case. HCs are failing to exercise jurisdiction.”
From this remark, it is clear that to some extent the pendency of bail matters at the Supreme Court stems from the functioning of the high courts. As further pointed out by him, the district judiciary must enforce the principle of ‘bail, not jail’ in practice in order to prevent the criminal law from becoming a weapon for the harassment of citizens. Justices S.K. Kaul and M.M. Sundresh , in a separate suo motu matter last year, also recognized the need for prompt hearing in cases of appeal for bail matters.
Thus, the problem seems to be rooted majorly in the functioning of the District Judiciary.
Also read: Are lower criminal courts working well? Punjab & Haryana HC’s latest orders raise concerns
Last year, the Madhya Pradesh High Court, in the case of Zarina Begum vs. The State of Madhya Pradesh, observed that the district judiciary is extremely tight-fisted when it comes to granting bail. Some of the main reasons cited behind that are dismissal of bail applications on the grounds that the allegations against the accused pertain to serious offences, the investigation is still in progress, or that the accused may influence the witness. As observed in the same case, the district judiciary also tends to deny bail to satisfy the perception of the public at times. The judges of the district judiciary also fear that they may be questioned by the High Court or complaints may be preferred against them by disgruntled litigants. In addition to this, vigilance enquiries might also be initiated against them.
The office of the District Judge (Vigilance and Inspection) has a debilitating effect on the independence and individuality of the judges of the district judiciary. The judge holding this post has the power to examine orders and judgments passed by the district judiciary and provide his assessment of the same. As observed in the case above, at times this person, merely to prove their preeminent importance to the High Court, comments upon a judgment being passed with a dishonest motive only because in their opinion, the order is bad in law. And an adverse report from the District Judge of Vigilance and Inspection can initiate enquiry against the judge in question. This demotivates the judges of the district judiciary from following the principle of ‘bail, not jail’ and granting bail easily.
Hence, although the concept of bail safeguards the presumption of innocence principle of criminal law, the ground reality deviates from the principle. The reluctance of the district judiciary in granting bail creates a burden of appeals in bail matters for the high courts. If the high courts are reluctant in upholding the principles, it leads to the pendency of appeals in bail matters in the Supreme Court. This is how the higher judiciary is clogged with bail matters. It must also be noted that many accused who do not have the resources to pursue multiple appeals by this way, often end up staying in jails for a punishingly long period.
Also read: ‘Ills’ Plaguing Judicial System and “Pills’ to Enhance Its Efficacy
In addition to this, the inconsistency in bail matters not only clogs the higher judiciary, but it also leads to the overcrowding of prisons, as pointed out in the 268th Law Commission Report. The report also suggests that unnecessary pre-trial confinement should be minimized as it is not only detrimental to the accused who is kept in custody, but it also puts the burden on the State. Such confinement can also have an adverse impact on future criminal behaviour, diminishing the reformative perspectives of criminal law.
The district judiciary is extremely tight-fisted when it comes to granting bail. Some of the main reasons cited behind that are dismissal of bail applications on the grounds that the allegations against the accused pertain to serious offences, the investigation is still in progress, or that the accused may influence the witness.
It must also be noted that India acceded to the International Covenant on Civil and Political Rights [ICCPR] in 1979. Article 9(3) of the ICCPR states that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power, and shall be entitled to trial within a reasonable time or to release. Indian criminal law is in line with the first prong of this provision, as a person arrested for any crime must be brought before a judicial magistrate within 24 hours of such arrest. However, no provision of the CrPC prescribes for the release of a person if the trial is not conducted in a reasonable time. Recently, advocate Sudha Bharadwaj, an accused in the Bhima Koregaon case, was granted default bail by the Bombay High Court after being in custody since 2018. The National Investigation Agency appealed against this order before the Supreme Court, but the same was rejected.
Also read: Sudha Bharadwaj released from jail after three years
While instances of the prolonged trial are common and the accused is often faced with significant jail time because of the prolonged nature of the trial, recently the Supreme Court also came across a shocking case where a bail plea was not even listed for more than a year by the Punjab and Haryana High Court.
Owing to these reasons, multiple applications for bail arise, and the reluctance of the district judiciary in granting bail clogs the higher Judiciary. As per the annual report of the Supreme Court, a total of 20,745 bail applications were filed before it in 2019-20.
The way forward
For the due enforcement of criminal law, courts must work towards safeguarding the public interest. The bail clog in the higher judiciary can only be solved if the subordinate judiciary is dedicated to upholding the basic principles of criminal law and granting bail in the matters that would qualify for the same. While trials can turn out to be lengthy in India, it would be unfair if an accused is kept in jail for a long time based on mere allegations.
The Supreme Court, in Harjit Singh vs. Inderpreet Singh last year, confirmed some parameters to be considered by high courts to grant bail. The test to be applied is that bail must be granted unless the court has a reason, based on evidence, to believe that the accused will influence witnesses, tamper with evidence, or otherwise thwart the process of law on being released on bail; and/or, a conviction is probable and the accused is also likely to abscond in order to escape the punishment likely to follow.
Sometimes, merely to prove their preeminent importance to the High Court, the District Judge (Vigilance and Inspection) comments upon a judgement being passed with a dishonest motive only because in their opinion, the order is bad in law. An adverse report from the District Judge of Vigilance and Inspection can initiate enquiry against the judge in question. This demotivates the judges of the district judiciary from following the principle of ‘bail, not jail’ and granting bail easily.
Also read: Right to seek default bail indefeasible part of right to personal liberty: Delhi HC
Further, for the purposes of the advancement of criminal justice, the actual focus of the judiciary must be on the trial and not on the grant of bail. The time of the courts that bail matters take up often creates an impediment in the speed of trials. The Supreme Court, in Hussain & Anr. vs. Union of India (2017), issued a direction that bail applications in subordinate courts shall be disposed of normally within a week, and in the high courts, within two to three weeks. Bail should be considered as a preliminary issue, and not a question of merits. Matters relating to bail should not be taken on lengthy hearings and detailed discussions on legal provisions.
As per the annual report of the Supreme Court, a total of 20,745 bail applications were filed before it in 2019-20.
Finally, the post of District Judge (Vigilance and Inspection) which is believed to cause an intimidating effect on the district judiciary, must be re-assessed. If the same is not completely done away with, then at least the powers held by the holder of this post must be curtailed in such a manner as to safeguard the independence of the district judiciary. This way, the judges of the district judiciary would be less reluctant in upholding the principle of ‘bail, not jail’, and the same would lower the burden of bail applications by way of appeals before the higher judiciary.
(Tanish Arora is a third year B.A., LL.B. (Hons.) student at the W.B. National University of Juridical Sciences, Kolkata. The views expressed are personal.)