Courts must know bail, not jail, has to be the rule

The grant of bail or its refusal in criminal cases has become a matter of controversy. It is unfortunate that the subject has acquired pronounced political overtones instead of remaining within the realms of law. I hold all the principal dramatis personae in the criminal justice system responsible for this unfortunate distortion of what is an uncomplicated principle of judicial procedure.

I am appalled by the continual injustice we are doling out to persons who have allegedly committed criminal offences defined in our statutes. I am not for a moment suggesting that all prosecution and judicial decisions in bail matters are flawed or are malafide. I am only pleading for greater objectivity and compassion while making decisions that adversely affect the human rights of individuals. The affected parties are both political personalities and ordinary people, especially the poor.
In this context, I worship the late Justice VR Krishna Iyer of the Supreme Court (SC) of India. I worship him not only for his brilliance but also for his compassion and clarity when it came to offering succour to powerless citizens. Justice Iyer’s much-quoted remark — bail is the rule, jail is an exception in the State Of Rajasthan, Jaipur vs Balchand @ Baliay, 1977 — remains forever the edifice on which our system should stand.
I must unequivocally record here that I am pained at recent developments with regard to the granting of bail to the accused. The dice is, undoubtedly, loaded heavily against persons hauled up by enforcement agencies, including the police. This has to change at once if we are to hold our heads high in the comity of nations.
Several court decisions have put down succinctly the law on the subject. Any offence punishable with seven years or more in jail does not entitle a prisoner to bail until the trial court pronounces the conviction or acquittal. For offences punishable with shorter terms, three circumstances merit consideration when a prisoner applies for bail: First, the prisoner is likely to flee from justice; second, he or she is likely to inflict bodily injury to anyone connected with the crime; third, he or she is likely to tamper with the available evidence or intimidate the prosecution witnesses. If the answer to all three is “no”, it will be unjust to hold a prisoner until the trial court pronounces its judgment.
No decision to grant bail to an accused is irrevocable. Any adverse report from the prosecution on prisoner conduct during court proceedings that impinges on the outcome of the trial will send him or her back to jail. I have come across several instances of lower courts ignoring all these factors and keeping a prisoner in custody. This is objectionable and smacks of vindictiveness. It deserves the condemnation of higher courts.
Rightly or wrongly, there is an impression among the public that affluent and politically connected prisoners get privileged treatment at the hands of trial courts. The SC has come down on such blatant discrimination on several occasions with minimum impact on the lower judiciary. The latter misguidedly continue to believe that a spell in prison is tantamount to justice. Such courts need to be educated on the objectives of imprisonment.
I am also incensed over the time courts take to pronounce their orders on bail applications. Arguments before courts can be greatly curtailed once a prisoner applies for bail and the prosecution has had a look at it and offered its comments. There is no case for elaborate arguments lasting for days. Courts have to take the blame for allowing this unethical prolongation of arguments, which are backed by vested interests.
In sum, the matter of bail is no rocket science that could baffle the parties concerned, including the judiciary. It is heartening that the Chief Justice of India, Dhananjaya Y Chandrachud, has resolved to hear at least 10 bail petitions daily. This should gladden all those who believe in ethics and compassion. This, however, begs the question of whether bail decisions should go up to the highest court at all. Obviously, there is a serious flaw in the manner in which lower courts handle bail applications.
RK Raghavan, a former CBI director, is currently professor of criminal justice and policing at the Jindal Global University. The views expressed are personal