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.

1 comment:

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