Monday, November 7, 2011

Bail: A Fundamental Right by Dr. Rajeev Dhavan

There are good reasons to miss Justice Krishna Iyer to whom we own much of our re-thinking about bail as a fundamental right and not just an untidy gift from the judge deciding a bail application. Working, as he says by “candlelight” on bail applications, Krishna Iyer was astonished in Babu Singh’s case (1978) that bail orders were made with “impoverished brevity draped as discretion”. He added: “To glamorize impressionistic orders as discretionary may on occasions make a litigative gamble decisive of a fundamental right”.

Can a fundamental right be disposed off casually with the cryptic order: Bail denied.  The short answer is No. Good reasons must exist for denial. As Iyer puts it with the full authority of the Supreme Court: “Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system, that the crucial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community”. The constitutional emphasis was made clear in Balchand (1977): “The basic rule may perhaps be tersely put as bail not jail”.

          From this three things are clear (i) Bail is a fundamental right (ii) The norm is bail not jail (iii) Good reasons, with full explanation in writing must exist for denying bail. Building on this, in 1980, Parliament added to Section 437 of the Cr.P.C. that even in highest punishment cases special consideration has to be given to juveniles under 16 years, women, the sick and in firm. All this – although good law – has been lost by judicial amnesia.

          It is not surprising that bail decisions in the 2G case – especially in the case of Kanimozhi case. The fundamental right to bail is not absolute. The English common law rule (now modified from 1984) is no arrest without a charge. In India we follow the imperial Raj Law that custody may extend to 60 or 90 days in the absence of a charge sheet. Judicial custody orders after charge are possible but should be avoided. Swayed by the blitz of publicity and their own biases, judges treat an accused as a convicted criminal even though he is innocent until proved guilty (see Kashmira (1977)).

          In this day and age, the four major concerns about bail can be easily met, namely about the accused (i) absconding (ii) non-cooperation with the police during investigation (iii) intimidating witnesses and (iv) tampering with evidence. In the 2G case, the charge sheet and supplementary charge sheet have been filed. Bail with precautionary conditionalities can be imposed. Impose high surety bonds. The new solution of  accused wearing an electronic anklet which will give the exact location of the accused can be imposed. Conditions can also be imposed regards witnesses and evidence which if violated will result in cancellation of bail. This is called putting the accused on terms.

          After all this the principle of “bail not jail” applies squarely. The magistrates and judges are obliged to give weighty reasons in writing for denying bail. Unfortunately, India’s bail practice is haphazard, ad hoc, temperamental and swayed by judicial moods influenced by publicity.

          Denial of bail the 2G case, with a troubled Kanimozhi’s poignant face reproduced in every news paper and TV, is troubling. On 24 October 2011 the CBI lawyers led by U.R.  Lalit (especially appointed by the Supreme Court) categorized the seven bail applications separating those where the punishment between five and seven years respectively. This distinction is traceable to Section 437(ii) which recommends bail in cases where the punishment is less than seven years. On this basis, the CBI opposed bail for only those in the latter category consisting of Shahid Balwa (accused of cheating) and R.K. Chandola who was accused of Prevention of Corruption Act offences.

          The CBI took the stance that those under “umbrella change of criminal conspiracy … need not be considered during bail”. This meant bail for Kanimozhi, Sharad Kumar (TV Director), Karim Mokani (film producer), Rajeev Agarwal and Asif Balwa (realty promoters).  No one argued for custody for these five except the judge himself.

          Somehow the judge got it all wrong. On 22 June 2011, the Supreme Court had indicated that bail could be applied when the charge sheet (challan) was filed. On 22 October 2011, the Special CBI court framed charges against 17 persons. Kanimozhi had been denied bail on 20 May, 8 June, 20 June before making her application which was denied on 3 November 2011.

          Why did this happen? The bail applications were slated for 24th October after which orders were reserved till 3 November 2011. In the meanwhile the Supreme Court took an acute interest in the bail when it should not have done. On 31 October 2011, Justices Singhvi and Dattu wanted the CBI to clarify its stance on the bail applications and the basis on which it was not opposed. What a question by the highest court of the land before the bail order was to be pronounced. Additional Solicitor General Rawal’s response was evasively inadequate. The Supreme Court should have shown restraint. Even their asking questions was an interference with the lower court’s judicial process.

          The Supreme Court cannot be excused for what it did.  In my view, the Supreme Court should not have made indirect inquiries about bail proceedings in a manner which could be taken as suggesting that the CBI’s advocacy in not pressing bail for five persons was questionable. Which lower court judge would not feel intimidated by the Supreme Court’s concern? There are innumerable cases where orders passed by the lower judiciary not to the liking of High Courts led to disciplinary action against them. Faced with this kind of pressure and other different expressions by the Supreme Court, it was difficult for special CBI judge O.P. Saini not to address or echo the Supreme Court’s inquisitorial  concerns. Judge Saini took the safe route of emphasizing the seriousness of the offence. Does this mean all those accused of serious economic offences even after the charge sheet is filed should be denied bail. Note on the very next day (September 4), Raju of Satyam was granted bail by the Supreme Court. The reason for Judge Saini not applying the ‘woman’ exception in the case of Kanimozhi is even more startling. Her case under the woman exception was not considered because she came from the upper echelons of society, was an MP and “therefore by no stretch of imagination … can be said to be suffering from any discrimination on the ground of being a woman”. This is fantastic. No where in the Cr.P.C. is the exception limited to exclude the well off or that the civil liberties of some women are to lightly regarded. Judge Saini also made light of the distinction between those charged in the main and supplementary charge sheet. But surely this was to emphasize their co-conspiratorial role and lesser punishments. Judge Saini made short of the CBI supporting bail in five cases. His ultimate and real reason was that “those who continue to reap the benefits of the crime committed do not deserve any indulgence; and any sympathy to them not only being entire misplaced but also against the larger interest of society.” This was even more fantastic. Judge Saini had obviously found them prima facie guilty and, therefore, undeserving.

            All this runs wholly against ‘bail’ being a fundamental constitutional right.

          One more suggestion. In the Vineet Narain’s Hawala case (1998), the Supreme Court said that higher courts should let go of monitoring criminal cases after the charge sheet has been filed. In my view, the charge having been filed, the Supreme Court should let go of the 2G now to take its own course. Their continuance on the case is causing confusion and injustice.

Tuesday, September 6, 2011

Dear All,

After a brief hiatus the PILSARC Friday Talk Series is back!

This week’s discussion is broadly on the topic of land acquisition, focusing on the Bill approved by the Cabinet. Land Acquisition always poses complex questions. The existing law of 1894 has posed several problems and recent political demonstrations as also judicial decisions have stressed the need for a change in the acquisition law. Does the proposed bill improve things?

We welcome you to an open forum where you are free to discuss the concept of eminent domain, the right to property or any provision regarding Land Acquisition. 

Topic   – Land Acquisition and the proposed Bill.
Lead By- Dr. Rajeev Dhavan
Where – PILSARC Library, Basement, A-131, New Friends Colony,  New Delhi.
When  – Friday, 9 September, 2011, 5:00 p.m. onwards
Contact -- 011- 26841079, 26822525

We hope you will come and be moved to participate actively in this debate. Please feel free to bring along friends / colleagues / like-minded people.

Tuesday, December 14, 2010


This is to invite you to a public lecture by Dr. Walter Kaelin, hosted by the Public Interest Legal Support and Research Centre (PILSARC).

Dr. Kaelin is a legal scholar and emeritus Professor of Law at the Institute of Public Law, University of Bern and will be speaking on ‘Climate change and displacement: A challenge for international law’.

He was formerly the Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons. The event will be chaired by Dr. Rajeev Dhavan, Senior Advocate, Supreme Court of India and Director of PILSARC.

Date: Friday, 17th December, 2010

Venue: Gulmohar Hall, India Habitat Centre, New Delhi

Time: 6:00 p.m. onwards

Please confirm your participation to Rashmi Raman, PILSARC at or to Priyadarshini Hariharan, PILSARC at

Wednesday, December 1, 2010

Friday Talk Series - December 3, 2010, PILSARC Library

Dear All,

Thank you for following the PILSARC Talk Series and helping us to create a lively debate here in the library every Friday. After last Friday’s discussion (if you missed it, our intern has put up a report which is available on the PILSARC blog) on the environmental issues surrounding mining and damming activities in India, we now hike the heat up a notch as we move on to the recent Markandeya Katju decision on live-in relationships in India as perceived by our courts. Taking it further (as was agreed upon), this Friday we meet to discuss the rights and wrongs of sexual orientation and the law as it applies to the LGBTIQs of our country.

I hope you will all come and be moved to participate actively, please feel free to bring along friends / colleagues / like minded people.

Tea and snacks are on us, as also the responsibility of steering the discussion!

Topic(s) – Katju’s judgement on live-in relationships ; law and sexual orientation in India
Lead by - Dr. Rajeev Dhavan
Where - PILSARC Library, Basement, A-131 New Friends Colony, Delhi
When – 3 December, 2010, from 5.30 p.m.

I look forward to seeing you this Friday at the PILSARC Library!

Warm regards,

Rashmi Raman
Senior Researcher,

Report on Friday Talk Series (by Akash Tiwari, Intern at PILSARC)

Environment protection in India with respect to mines and dams

• The discussion was initiated by Ms. Roohi. She laid emphasis on the trips made by her to places in Chhattisgarh and Himachal Pradesh and described briefly the situation in the naxalite areas regarding mining activities in that area. According to her, the situation is not at all satisfactory. There is literally no check on the mining activities being carried out in this particular area. Chhattisgarh is home to tons of natural resources and mining activities in the area have been going on since its inception in Nov. 2000. For eg- in Bailadilla which is home to tons of iron ore deposits, mining activities have been causing greater damage to the surrounding areas. For eg- the color of the water used for domestic purposes has changed to red due to the mining activities and is not fit for serving any purpose. She gave a similar example of damage being cause to the environment due to unregulated mining activities in certain remote areas of Himachal Pradesh as well. She also clarified that there is no proper implementation of the provisions of any of the statutes related to protection of environment regarding the mining activities. Law on the paper is useless until and unless it is implemented.

• Students from Jamia Milia gave similar examples on unregulated mining activities and its effect on the environment. One of them gave an example of how a mining area looks like describing it as a place which looks like war zone, desolate and life-less. They also mentioned the fact that knowledge of the law is important in such discussions where you need to have the knowledge of certain legal doctrines related to environment protection such as the polluter pays principle, the principle of sustainable development etc.

• A student from the HNLU, raipur laid emphasis on the fact that until and unless situation and the grass root isn’t taken care of, nothing could be done in areas like the naxalite affected areas of Chhattisgarh and Orissa where there is lack of basic amenities. One should first correct the basic infrastructure required for human survival and then talk about environment protection.

• Lastly, Dr. Rajeev Dhawan mentioned about an article of his on Slaughter Mining related to the Mines Act, 1952. Where he has raised the issue of proper implementation of the provisions of the Act as was the issue raised by Ms. Roohi previously. He also said that the run of the river cases are the one’s which are most difficult to argue in front of the Court. He also discussed the report on Total Environment Impact. Then he went on to discuss that where there is construction there ought to be pollution. Activities like mining would eventually release dust particles and chemicals into the environment. He also mentioned about the mining belt which runs right through the Central India. He specifically mentioned the fact that PESA was a badly drafted act and that there were some shortcomings in the provisions of the Act. Then he went on to discuss the Forest Conservation Act and the Environment Protection Act and said that they have contributed significantly in the protection of the environment and both of them were permissive and process oriented legislations. He also laid stress on the fact that there is a need of Informed and educated activists, not just activists. He also specified the need of environmentally active bureaucrats and also briefly mentioned some parts of the Samta judgment. He gave an example of active an informed activists in the form of CSE.

Friday Talk Series - November 26, 2010, PILSARC Library

To all those who have been attending sessions on Friday evenings, thank you for coming and strengthening the debate here at PILSARC! Last week's discussion on Kashmir was arguably the hottest one we've had in this series!

Tomorrow, to take the heat down a notch, as decided by last week's vote, we will gather to explore the environmental concerns arising from the recent spate of judgements on mines and dams, a topic that has made activists sit up and take notice even as international conventions on environmental degradation witness an all-time high.

Please bring along friends / colleagues / interesting people you know / students, and join us as we begin to understand the promise and the price of environmental protection in India.

What - Environmental protection in India - mines and dams
Who - Lead by Dr. Rajeev Dhavan
When - Tomorrow, Friday, 26 November, 2010
What time - 5.30 p.m.
Where - PILSARC Library (Basement), A 131, New Friends Colony, Delhi - 25

Tea, snacks and copies of the available discussion materials are on us, as is the difficult responsibility of steering the conversation!

The PILSARC Friday Talk Series is intended to provide a free and informal forum for intelligent, critical, analytical minds to speak out and have their voices heard. In case I have missed out inviting people that attended the previous talks in this list, please do forward this invite to them - thanks!

I look forward very much to seeing you all here tomorrow evening!



Thursday, November 18, 2010

Dear Faithful!

I hope this finds all of you refreshed and ready to exercise those brains after a long and many-festive-holidays interspersed break,

It is time for us to reconvene at the usual place (which is now renovated and looking much better than before); I am delighted to invite you all to another brainstorming evening, this Friday, November 19, 2010 (tomorrow, from 5.30 p.m. onwards, at A-131, New Friends Colony, Basement Library, to join Dr. Rajeev Dhavan as we attempt to make sense of the set of contradictions that define the Kashmir issue.

Please join us in large numbers, I hope you have made lots of new friends during the holidays and will bring them and more people along with you! Don't disappoint us, show up, and we will supply the usual fare of intellectually stimulating discussion, hot tea and jalebis :)

The PILSARC Friday Talk Series is intended to provide a free and informal forum for intelligent, critical, analytical minds to speak out and have their voices heard.

I do look forward to seeing all of you!!