This is a short white paper on the legal principle of bail rule, jail exception laid down by the Supreme Court of India. I prepared it as part of my research for an article for Sunday Navjivan and National Herald. An edited piece was first published on Sunday Navjivan here:
According to 2019 Prison Statistics of India Report 2019 (PSI 2019), the latest available report, the total number of prisons in India is 1,350. Total occupancy capacity of the prisons is 4,03,739 but the actual occupancy is 118% of the capacity i.e. 4,78,600. Out of this, a shocking 3,30,487 i.e. 69.05% of the prisoners were undertrial inmates which means these people are in jail without their crime being proven. A gross violation of their right to life and liberty.
The PSI 2019 states that the number of undertrial prisoners has increased from 3,23,537 in 2018 to 3,30,487 in 2019 having increased by 2.15% during this period. According to a media report, the number of undertrials increased at a faster rate between 2001 and 2019 than those convicted. At the end of 2019, 3.28 lakh prison inmates were undergoing trial, while 1.42 lakh were convicted. The number of convicted prisoners and under trial prisoners were around the same in the early 70s but the gap started widening during the early 80s.
Uttar Pradesh tops the list with highest number of undertrial prisoners constituting (22.2%, 73,418 undertrials) followed by Bihar (9.5%, 31,275 undertrials) and Maharashtra (8.3%, 27,557 undertrials) at the end of 2019.
Highest number of undertrial inmates were arrested on Liquor & Narcotics Drugs Related cases, 58.7%, 41,985 inmates, the same case under which
As many as 5,011 undertrials were lodged for more than five years in prisons across the country, with 42.74% of them just in Uttar Pradesh.
While hearing Arnab Goswami’s bail petition a Supreme Court bench of Justice DY Chandrachud and Indira Banerjee observed that according to National Data Judicial Grid over 91,000 bail pleas are pending before the High Courts across the country. The Bench expressed concern over the pending bail applications and suggested that the HCs clear the backlog. “The chief justices of every high courts and administrative judges of districts should in their administrative capacities utilize the Information and Communications Technology tools to remedy the institutional problem of bail applications and monitor the pendency as liberty is not a gift for the few,” the Bench observed. The Bench also stressed that the high courts and trial courts must enforce the ‘bail, not jail’ principle of criminal justice system. There are also 1,96,861 bail pleas pending in district courts.
Burden on Court: According to National Judicial Data Grid, as on date, 2,66,24,817 total criminal cases pending across India, out of which 2,07,06,446 i.e. 77% of the total pending criminal cases are more than one year old and 14% of the cases are 5 to 10 years old.
An RTI query response has revealed that there are 931 pending petitions for interim, regular or anticipatory bail before the Supreme Court. The RTI query was filed by Saket Gokhale during the time when Arnab Goswami’s bail hearing came up within a day of filing it.
Law commission recommended sweeping changes in CrPC to make way for easier bail to undertrial prisoners
The 268th report of the Law Commission led by former Supreme Court judge, Justice B.S. Chauhan, ‘Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail’ extensively deals with the issue of granting bail. The Law Commission was originally asked to consider preparing a stand-alone Bail Act for India but later it was suggested by Advisory Council that stand-alone Act is not required and suggestions for amendments in existing laws were recommended. The report was submitted to government in 2017. It considered data and statistics related to undertrial prisoners, pending bail cases, international standards among other criteria to recommend suggestions.
The Commission in its report said that, “Bail in its essence is a fine balance between the right to liberty of the person accused of an offence and the interests of society at large. Historically, the bail was a tool to ensure the appearance of the person accused of an offence at trial or to prevent such a person from tampering with evidence or witness.”
The commission observed that, “It has become a norm than an aberration in most jurisdictions including India that the powerful, rich and influential obtain bail promptly and with ease, whereas the masses/the common/the poor languish in jails…A majority of under-trials (70.6 per cent) are illiterate or semi-literate. In the absence of data regarding economic status of prisoners, ‘literacy’ serves as a useful proxy to appreciate that, the majority of under-trials belong to the socio-economically marginalized groups.”
Law Commission recommended that undertrials who have completed one-third of the maximum sentence for offences up to seven years be released on bail. Those who are awaiting trial for offences punishable with imprisonment of more than seven years, should be bailed out if they have completed one-half of their sentence. The Commission said new legal provisions for remission should be included to cover those undertrials who have already endured the full length of the maximum sentence.
The commission also noted that more than 60% of arrests are un-necessary and recommended that arrests should be made only on proper grounds and after following strict supreme court guidelines. Section 50 of CrPC should be amended to make sure that at time of arrest the police officer must inform the accused the nature of the offense, and whether it is bailable or non-bailable, and their right to bail, free lawyer etc in writing and in the language the accused understands. These should also be noted in the case diary. Magistrates should not detention in police remind in casual manner and must verify the case diary.
The commission recommended that appropriate authority should map the socio- economic impact of the ‘Right to Bail – its grant or Refusal’
Law Commission observed that Presumption of innocence is the golden thread in criminal law jurisprudence. Every individual charged with a crime has a right to be presumed innocent until proven guilty. The guideline that bail be the general rule and jail an exception, is the logical and consistent adaptation of that principle. It is enshrined in Article 11 (1) of the Universal Declaration of Human Rights, 1948 (UDHR), Article 6 (2) of the European Convention on Human Rights (ECHR), Article 48 (1) of the Charter of Fundamental Rights of The European Union and Rule 111 of the United Nations Standard Minimum Rules for The Treatment of Prisoners also known as the Nelson Mandela Rules. Right to non-discrimination is the other cardinal principle of criminal jurisprudence.
‘Bail is a rule, jail is an exception’ doctrine was laid down by Supreme Court by Justice V. Krishna Aiyer in a landmark judgement in the case of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447) basing it on the Fundamental Rights guaranteed by the Constitution particularly right to liberty under Article 21. Supreme Court has also time and again reminded High Courts and magistrate courts to follow the set principle. In March 2020 SC reminded the principle to HC which denied bail to an accused who had been in jail for over 5 years even after the closure report was filed by police, Live Law reported.
Despite a strong precedent set by Supreme Court, the ruling party has strongly opposed the “Bail rule, jail exception” principle which was set out as a promise in Congress party’s 2019 election manifesto.
The chapter titled ‘Review Of Laws, Rules And Regulations’ of the manifesto noted that, “…we are an over-legislated and over-regulated country. Laws, Rules and Regulations have proliferated and restricted freedoms. Consequently, there are severe restrictions on innovation, enterprise and experimentation, and economic growth has suffered,” and specifically promised to “amend the Code of Criminal Procedure and related laws to affirm the principle that ‘Bail is the rule and jail is the exception.”
Ironically, the Prime Minister, who is expected to be aware of legal principles and Constitutional rights as well as global practices, himself targeted this very promise.
In an election speech on April 9, 2019 he said, “The Congress manifesto is the document anti-India forces were waiting for. It made terrorists very happy because it says, bail is rule and jail is the exception. I was shocked to read this. But when I saw the recounting minister who headed the manifesto committee I was not surprised. After all getting bail is important for his own existence. And do not forget his bosses are also out on bail on tax fraud.”
In several other speeches during the 2019 campaign Modi repeatedly attacked the principle making claims such as, “it is a conspiracy to weaken the veer jawans, it would give the rapists free hand, those who attack your sisters and daughters will not be put in jail anymore,” and so on.
Cases – Rich and influential people getting bail, marginalized communities cannot, political allegiance plays a role
Presently there are several human rights activists, students and academics who are in jail for years without a trial. Repeated bail applications by them have been denied. Activist Father Stan Swamy who was arrested in Elgar Parishad case along with Sudha Bharadwaj, Varavara Rao, Anand Teltumbde and others died in jail unconvicted. Rest of the activists are still in jail some of them being incarcerated for over three years without trial in gross violation of Constitutional and global standards of criminal jurisprudence.
Dr Kafeel Khan, journalist Mandeep Punia, comedian Munawar Faroqui and most recently actor Aryan Khan had to spend time in jail for months to year on flimsy grounds without a chargesheet or trial. At the same time pro-government journalist Arnab Goswami’s bail petition came up for a hearing before Supreme Court within a day of filing and he promptly got relief.
Statistically, around 70 percent of the undertrials are socially and economically backward and as such they struggle to obtain bail. But some of the prominent cases shows that the matter is not so simplistic. Aryan Khan is a son of one of India’s most powerful and influential person but he could not manage to obtain a bail before four weeks. In contrast, in over dozens of cases of mob lynching by self-proclaimed cow vigilantes associated with right wing Hindutva groups the accused persons are all out on bail and the victim’s family have not got any justice. In many of these cases the ruling party itself have actively supported the bail applications and appeals.
In 2018 Jharkhand High Court granted bail to eight out of the 11 persons (including the four main accused) who had been convicted and sentenced to life imprisonment by a Fast Track Court for the lynching of Alimuddin alias Asgar Ansari. BJP minister Jayant Sinha had confirmed that BJP members, including himself, had paid for the legal expanses of the accused in the case.
In 2019, once again Jharkhand High Court granted bail to 6 out of 13 accused of mob lynching of Tabrez Ansari.
Indiscriminate arrests by the police, lack of legal awareness about right to bail, lack of efficient and dedicated lawyers, overburdened courts, inability to furnish the bail surety due to poverty are some of the reasons behind undertrials languishing in jail. Advocate Saurabh Kunal who practices both in Supreme Court and Bihar’s Chhapra district says that lakhs of undertrials are rotting in jail while many accused are not even arrested. “The police action is arbitrary. They file FIR against “unnamed persons” and then pick up anybody they like. Some of these inmates do not even get a copy of the FIR. They do not know why they are in jail, but they are so poor that they accept it. Outside jail they would struggle to arrange for two times meal so they do not even try for bail. Their family members also do not want them. They make their life inside jail, almost like prison staff. They will wash the clothes of powerful prisoners, cook for them, do their massage etc.
The NJDG data shows that lack of availability of a lawyer is a serious concern. Over 33,32,250 criminal cases are pending across India as on date due to Non availability of Counsel. “The legal service authority provides a lawyer for free to the accused but most of these lawyers are lethargic, insincere and inefficient. They often do not appear for the bail hearing,” says Kunal. “The courts are also overburdened and have no time to take a sensitive approach. If on 2-3 hearings the counsel do not appear the case is sent to record room, and then it dies there. Technically, the Court is not wrong in this approach but they should take a sensitive approach and find out why counsel is not appearing or appoint a new counsel,” Kunal added.