Withholding bail amounts to punishment without trial!
By PUCL Bulletin Editorial Board
Justice Krishna Iyer’s famous dictum, `Bail is the rule, jail the exception’ was for many decades an article of faith in the working of the criminal justice system until the draconian and anti-human rights laws like TADA, POTA and its new avatar UAPA came to be passed. Adding to the arsenal of the state’s draconian powers were also laws like the PMLA which prescribe such stringent conditions for granting bail, that obtaining bail become almost impossible. The condition that the bail court should come to an opinion that there are `reasonable grounds’ for “believing” that the accusation against accused persons is “prima facie true” came to be interpreted by the Courts so strictly that none could get bail. So much so, in the last 10 years ‘Jail is the rule, bail is the exception’ highlighted the approach of Courts in considering bail applications.
Overwhelming evidence that the state was using the laws like the UAPA and PMLA arbitrarily and capriciously against political dissenters and opposition leaders did not seem to cut ice with the Constitutional Courts. Most often, the courts tended to accept prima facie, the `serious and grave’ allegations made by the prosecuting agencies, without critically examining whether the materials gathered by the prosecution against the accused supported the allegations against the accused. It did not matter that the convictions in the UAPA and PMLA cases were poor, often times in single digits; rejecting bail petitions became the norm. Courts were unmoved by the argument of imprisoned persons that the punishment was imprisonment for years in jail without bail while waiting for trails which would take many years to conclude.
Amidst this gloomy scenario, two new rulings of the Supreme Court granting bail in a UAPA and PMLA case, have once again resurrected Krishna Iyer’s dictum that `Bail is a rule, Jail is exception’. In both cases two different benches of the Supreme Court clarified that the primary dictum still remains relevant as a principle to be applied when considering bail applications. They make some movement in the direction of reasserting a faith in the Constitutional guarantee of life and liberty.
In `Jalaluddin Khan v Union of India’ (dated 13.08.2024), Justices Abhay Oka and AG Masih adjudicated on a matter in which the accused was arrested in Bihar for allowing the first floor of a building owned by his wife, for activities of the Popular Front of India (PFI). After going through the charge sheet, the Bench determined that that even as per the charge sheet, prima facie there was no reasonable grounds for forming the opinion that the accused had committed the offences under the UAPA which he was accused of committing. The charge sheet did not indicate the offence of unlawful activity (Section 13), conspiracy to commit a terrorist act (Section 18), organising a terrorist camp (Section 18 A) or being a member of a terrorist gang or organisation (Section 20). Based on this finding the Court enlarged Jalaluddin Khan on bail observing that, “The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.’
In the relatively more high profile case of Manish Sisodia v Director of Enforcement, (decided on 09th August,2024) a Bench comprising Justices BR Gavai and KV Viswanathan, enlarged Manish Sisodia, (the former Dy CM of Delhi belonging to AAP) on bail after seventeen months of imprisonment, observing that ‘the appellant has been deprived of his right to speedy trial.’
The Supreme Court took cognizance of how the seventeen months of imprisonment had been spent, with Manish Sisodia moving his bail application from the trial court to high court to Supreme Court three times! As the Supreme Court observed, ‘the present case travelled two rounds before the trial court, the High Court and this Court. This is now the third round before this Court wherein the appellant is seeking bail in connection with the aforesaid two cases’.
When the prosecution argued that the bail application should be filed again in the Sessions Court, (for the fourth time), the Supreme Court laid that, ‘Now, relegating the appellant to again approach the trial court and thereafter the High Court and only thereafter this Court, in our view, would be making him play a game of “Snake and Ladder”…In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post.’
The Court released Sisodia observing that, ‘It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.’
Both the above rulings are important, for they reassert the basic principle that notwithstanding (i) the seriousness of the accusations made by the state and (ii) despite stringent conditions for grant of bail in relevant statutes the principle that “Bail is a rule, Jail is exception” still holds good with the only modification that bail can be granted if the conditions in the statute are satisfied. The Supreme Court pointed out in the Jalaluddin’s case “the rule also means that once a case is made out for grant of bail, the court cannot decline grant of bail. “If court starts denying bail in deserving cases it will be a violation of the rights guaranteed under Article 21 of our Constitution”. (emphasis ours).
The Sisodia and Jalaluddin rulings are welcome for they represent a break from the trend of rulings of the Supreme Court itself which rejected bail petitions because of the stringent provisions.
The crucial point to be noted, however, is the issue of determining what is a “deserving case” as pointed out by Justice Oka in the Jalaluddin case. Unless clear cut, rational, equitable guidelines are evolved by the Supreme Court to both determine what is a deserving case and how to apply the `bail is a rule, jail is exception’ dictum, inevitably the fate of bail petitions will be dependent upon the social and jurisprudential approach of the judges of the Constitutional Courts.
A case in point is the Sisodia bail petitions themselves. On 30.10.2023 when a different Bench of the SC dismissed the first of three rounds of bail petition filed by Sisodia, the apex court had pointed out that the ED/CBI had not provided any evidence that Sisodia has personally gained anything out of the alleged excise scam case or how exactly he was involved. What appeared to have weighed with the Court leading it to dismiss the bail petition, was a huge volume of Rs.338 crores alleged to be the scam amount and the assurance of the prosecuting agencies that the trial will conclude in 6 to 8 months’ time. At the time of the present bail petition, a similar argument that bail should not be granted to Sisodia in view of the grave allegations alleged against him and other co- accused and the contention that the trial will be concluded soon was not accepted by the Oka-led bench. So what made the difference?
Two things need to be pointed out at this juncture:
- Much depends upon the bench before which a bail petition is listed. and
- The social and the jurisprudential approach of the individual Judges towards allegations against the accused.
The paradox of different judges and Benches and their impact on judicial decision making was pointed out by former CJI, P. N. Bhagwati. In the ‘Bachan Singh vs State of Punjab’ case (1982), a majority of four Supreme Court Judges upheld the constitutionality of the death penalty. Justice Bhagwati delivered the minority dissenting ruling in which he pointed out to the dangers of depending on Judges to administer laws and follow procedures providing for sentencing guidelines especially in death penalty cases and explained:
“It is therefore obvious that when a Judge is called upon to exercise his discretion as to whether the accused shall be killed or shall be permitted to live, his conclusion would depend to a large extent on his approach and attitude, his predilections and preconceptions, his value system and social philosophy and his response to the evolving norms of decency and newly developing concepts and ideas in Penological Jurisprudence”.
On the question of approach of judges and courts, Justice Gavai very poignantly points out the systemic problem that “over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment.’ From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail…It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.
A similar view was echoed by CJI Chandrachud during a seminar hosted by the National Law School. When he was asked a question on what the Supreme Court can do in the case of ‘arrests of activists, journalists and even politicians and CM’s of opposition parties’, he responded by stating that while he would not address the ‘premise’ of the question he would ‘address the question’. The response of the Chief Justice was to say that the lower courts had to do their duty. The decision of the lower courts comes from the feeling that ‘the career will be on the line if they were to decide in a particular way’. The Chief Justice also noted that, the Supreme Court was prioritizing the hearing of bail applications and in an implicit acknowledgment of the political use of arrest he noted that ‘delay compounds the problems of those who face arbitrary arrest’. What is clear from the response of the Chief Justice, is that while the Chief Justice seems to be aware of the problem of ‘arbitrary arrest’, ‘delay’, and the fear of lower court judges, that ‘their career will be on the line if they were to decide in a particular way’, there is no evidence of anything being done to address the problem. If Lower Court judges are not giving bail out of fear of reprisal for grant of bail, that points to a serious rot in the system with implications for the independence of the judiciary.
The magnitude of the problem which is disguised as ‘delay’ can be understood by adverting to the situation of those who were arrested in the anti- CAA protests. Four years post the arrest, out of 18 arrrestees, only six have got bail. The remaining are waiting either because their judgments are reserved but not delivered, or judges are being transferred before they deliver the judgment or are recusing themselves. This has meant that Sharjeel Imam has had 73 hearings, Meeran Haider 75 hearings and Gulfisha Fatima 73 hearings without there being a decision! There is a travesty of justice due to inordinate judicial delays and multiple re-hearings of bail applications.
When the Chief Justice asserts in his public lecture that if ‘liberty has to have a value, a day in excess detention is a day too much’, it is necessary for the Supreme Court to fix the various problems of those suffering unjust incarceration like the anti- CAA protestors, the BK-16 accused as well as the journalists and human rights activists from Kashmir. The problems of ‘unjust delay’ caused due to judicial decisions such as recusal, transfer and reserved judgments have to be dealt with by the Chief Justice as judicial delay is eviscerating the constitutional right to life and personal liberty under Article 21.
An uncomfortable fact which has to be pointed out is not just the tendency of the lower or subordinate courts and High Courts in mechanically rejecting bail applications for fear of career implications. When there is no consistency in the application of basic principle of ‘Bail is a rule, Jail is an exception’ given by various benches of the Supreme Court itself, it will be unrealistic to expect the High Courts and Subordinate Courts to function independently and without fear. We cannot also forget that in the past one to two years complaints have been raised about arbitrary posting and changes of hearing of cases before different benches in the apex court. Serious questions have been raised about the transparency in posting of cases, in the transfer, appointment and elevations of Judges and other issues related to the independence of the judiciary. Unless these systemic and structural issues impacting the independent functioning of the judiciary are addressed, occasional rulings like in the Sisodia and Jalaluddin cases will appear, at best, chimerical.
What is needed is a nation-wide discussion about the manner of functioning and changes required in the Criminal Justice System functioning within the larger jurisprudential process . This is the only way to lead to a situation, as pointed out by Justices S.K. Kaul and M.M. Sundaresh, “The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system”.