Part 1: India’s Bail Jurisprudence – Need for Urgent & Comprehensive Revamp

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Introduction

1. It is no rocket science in India to figure out the drawbacks of criminal jurisprudence, and, in particular, its vital subset viz bail jurisprudence. Most criminal laws of India remain relics of a colonial legacy. Relative to other law reform areas, a very meagre amount of effort has been put into reforming these laws. The focus of governments, quite rightly, has been on basic sectors like health, nutrition, education, sanitation, and so on and so forth, while grievously forgetting that bail laws and practice affect the common man the most and hit him where it hurts most. Close to our seventy fifth birthday as the world’s largest democracy, with an abiding commitment to all human rights (including the paramount one of life and liberty), it is high time to focus on reforming some aspects of criminal jurisprudence in India.

2. Probably the most important subset of these is bail reforms. Though widely debated and demanded by citizens, activists, as well as the judicial fraternity, little concrete has happened on the ground in this field of bail reforms since Indian independence. In the last few years, however, a number of non-governmental initiatives, dedicated to prison and bail reforms, have mushroomed. The 21st Law Commission of India (hereinafter “Commission”), in its 268th Report in 2017 (hereinafter “Report”), in its first concluding line says, “The existing system of bail in India is ‘inadequate’ and ‘inefficient’ to accomplish its purpose”. 1 In my opinion, these are words of studied moderation, bordering on gross understatement!

3. Lord Denning, in his inimitable style, gave bail jurisprudence pride of place in the pantheon of liberty issues: “Whenever one of the King’s judges takes his seat, there is one application which by long tradition has priority over all others. Counsel has but to say & My Lord, I have an application which concerns the liberty of the subject & and forthwith the judge will put all other matters aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail, but, whatever form it takes, it is heard first.” 2 (Lord Denning, Freedom under the Law, p.3) The sensitivity of the apex court on this vital subject can be gauged by the similar observations of the Supreme Court in February 2018. An apex Court bench led by Justice Madan B Lokur highlighted “a fundamental postulate of criminal jurisprudence ( which) is the presumption of innocence.” The bench further added, “Another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good for our criminal jurisprudence or to our society” 3 . Needless to add, this is not the only time when the apex court has expressed its sensitivity in strong terms..

4. The paramount need is to establish the best possible equilibrium between the constitutional rights of the accused (who by definition is an undertrial and not a convict) and ensuring punishment to the offender through a fair trial. The equilibrium depends on a number of factors, including the sociological, political and economic situation of the accused, the victim, the felt necessities of society and above all the factual context of the individual case. Inevitably, each country gives differing weights to these two factors (and in different proportions) as also changes such weights and proportions from time to time. Such temporal and spatial dynamism undeniably makes bail reform tougher to implement. There is also an understandable skepticism related to the success of bail reforms, as reflected in Fleming et. al, who, through their quantitative analysis, attempt to show that bail reform was neither a great success nor a total failure

DISCLAIMER : Views expressed above are the author’s own.

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