To protect personal liberty, enforce standardised parameters on bail
The death of 84-year-old Father Stan Swamy in custody has rekindled the debate on the scope of pre-trial detention. This had gained steam in May, too, when the Central Bureau of Investigation (CBI) arrested four Trinamool Congress leaders in the Narada scam case.
These debates have been entangled in a political quagmire. However, as the Supreme Court (SC) had repeatedly reminded CBI during the Narada matter, all such debates fundamentally rest on the principles of bail jurisprudence.
“Bail is the rule, and jail is an exception” is an oft-quoted phrase. If that is so, why do prosecuting agencies tend to arrest, and why are courts hesitant to promptly enforce the primacy of personal liberty (right from the stage of anticipatory bail to remand under Section 167, Code of Criminal Procedure, and subsequently, bail)?
The courts have often stressed that personal liberty is humankind’s most valuable possession, and the law of bail has to find the balance between two conflicting demands — shielding society from criminals, and the presumption of innocence until proven guilty.
This assumes significance since, as data from National Crime Records Bureau has shown, there is a huge mismatch between the number of those who are arrested, those accused who are charge-sheeted, and finally those who are convicted. In nearly two-thirds of all cases, innocent persons stand the chance of being thrown in jail.
It was in 1959, at the New Delhi Conference on the Rule of Law, that the rights of an accused were identified. These included the presumption of innocence, and power of arrest and detention pending trial to be exercised only within strict limits. The prosecuting agencies and courts must be guided by these principles as they form the core of the rule of law.
The unfettered power of the prosecuting agencies to make indiscriminate arrests has also been recognised as a source of corruption. An attempt was made to keep this in check through the introduction of Section 41A in CRPC by prescribing legislative guidelines for making arrests in certain offences.
In 2014, the SC also laid down exhaustive guidelines on this.
Post-arrest, the first judicial intervention takes place when an accused is produced before a magistrate for remand. The reality is that due to the sheer volume of work, this judicial exercise has become almost mechanical. In almost all cases, police remand of the accused is ordered without examining the need for such detention.
At the stage of the consideration of bail matters, largely, subjective discretion is exercised by the courts. In the 1978 case of Gudikanti Narasimhulu, Justice VR Krishna Iyer recognised the grey area of pretrial bail and noticed that it “largely hinges on the hunch of the bench, otherwise called judicial discretion”. Recognising that personal liberty is too precious a value in India’s constitutional system, he stated, “To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right.”
Deprivation of the liberty of an individual is a serious matter. Accused persons spend a long time in jail, only to be proved innocent after lengthy trials in several cases. Therefore, it is imperative to uniformly enforce pre-trial detention only within strict limits governed by factors such as the probability of fleeing from justice, the likelihood of tampering with evidence including intimidation of witnesses, the gravity of the offence and the propensity to indulge in criminal activities while on bail.
Sensitising magistrates on the importance of zealous scrutiny of remand applications and monitoring by superior courts will go a long way towards achieving the constitutional goal of protecting personal liberty. The discretion exercised along standardised parameters will bring certainty and fairness in the judicial system, and is, therefore, the need of the hour.