Selective Protection of Personal liberty in Granting Bail

The operation of our criminal justice system can be evaluated on two significant aspects, effectiveness and efficiency. While the former is suggestive of the implications of the verdict on the larger interest of the public while on other hand the latter ensures a speedy trial which is a fundamental right under Article 21of the Constitution of India . The significance of these aspects are realized when one tries to understand the plight of undertrial prisoners. This is because on one hand, they yearn for a criminal justice system that is in line with the principles of a fair trial and on the another they wait for a speedy trial. Although, bail is the general rule in contrast to jail which has been laid down by the Supreme Court in various judgments although we find nearly 70% of the prisons filled with prisoners awaiting trial or bail.

On 11 November, 2020 the Apex Court granted interim bail to the founder and editor-in-chief of Republic TV, Arnab Goswami. By doing so, the Supreme Court reiterated that bail is the rule in all cases and stressed upon the importance of protecting civil liberties. Although the ruling of the Supreme Court is praiseworthy but the selective protection of individuals’ liberties by the Judiciary is a hefty blow to the faith of the citizens in the criminal justice system. The glaring defect lies not in the bail which is granted to Arnab Goswami but in the non-applicability of the same rule in cases concerning the individuals who are not in a position to wield similar power and influence as him and hence continue to languish in prisons. In this note, the author intends to examine the bigger problem regarding personal liberty and bail that is out in the open after this legal development.

SELECTIVE PROTECTION OF PERSONAL LIBERTIES

Recently, the Chief Justice of India expressed disinclination towards entertaining writ petitions under Article 32 in an attempt to cut down its jurisdiction. While the ‘soul and heart of the Constitution’ is being degraded, Arnab Goswami’s case offers a conflicting story. In an attempt to seek bail, Arnab’s lawyers moved the Session Court in Alibag, the Bombay High Court and ultimately the Supreme Court in a span of merely 7 days. Moreover, the Supreme Court heard the writ petition within a day of it being filed before the Registry. If one objectively examines the details of the arrest and the bitter tussle between Arnab and the Maharashtra Government, the interim bail granted by the Supreme Court truly furthers the spirit of Article 21. However, the question that arises here is if the Supreme Court could afford such special treatment to Arnab Goswami then what about other prisoners awaiting trial?

In contrast, an 83-year old Jesuit priest and tribal rights leader, Father Stan Swamy, suffering from Parkinson’s disease, was arrested in connection to the Bhima-Koregaon violence. When he requested to be given a straw and a sipper in jail (which is ideally an appropriate humanitarian response) the National Investigation Agency (NIA) court gave the prosecution two weeks’ time to reply. In Uttar Pradesh, a 41-year old journalist, Siddique Kappan was arrested by the UP Police for allegedly attempting to sow caste hatred while reporting on the Hathras gang-rape. The controversial arrest based on alleged conspiracy where he spent 43 days in custody without legal representation and the Supreme Court’s objection to unfair reporting of the case does not shed the apathetic attitude shown by the Court when his personal liberty and legal rights came into question. 

To summarize the relevance of this outright discrimination displayed by the system in the unerring words of Justice Deepak Gupta (former Judge of the Supreme Court), “…Our legal system is geared to favour the rich and powerful. The entire system would go into a frenzy whenever a rich or powerful person was put behind bars as numerous applications for bail and expediting the trial would be filed in the superior Courts, at the cost of delaying the case of a poor litigant. The poor and helpless also have a right to live with dignity without being unlawfully deprived of their personal liberty. A humane and compassionate judiciary is the need of the hour as judges can no longer live-in ivory towers.”

NEED FOR BAIL REFORM: THE BIGGER PICTURE

The fact that the majority of the population in prison are unaware of their rights, coupled with the costs for effective legal counsel renders the remedy unreachable to the masses. Moreover, the quality of the advocate provided by the State under obligation is not of an exceptional standard. Besides, legal aid lawyers due to their laxity and incompetence do not offer the minimum legal assistance required to seek the appropriate remedy. There are several allegations against these lawyers about irregular appearances, not informing the client about the status of the case and poor defence put by them in the bail as well as trial stages. The incentive provided to the State advocate is also much less and negligible which results in the legal aid advocate not putting in all his efforts leading to the detriment of the underprivileged. 

The bail system is imbalanced against the poor since they are not able to furnish bail on account of their indigence while the wealthier persons are able to secure their liberty taking note of their affordability to furnish the same. The outright discrimination and non-uniformity in dealing with bail applications based on financial income and stability is also not a ground for violation of Article 14. Owing to this constitutional conundrum, the legal rights of the disadvantaged prisoners are rendered meaningless. The Supreme Court nearly 40 years ago in Hussainara Khatoon v. Home Secretary, Bihar observed that the Bail system is oppressive against the poor and the Courts and  police must abandon the antiquated practice of release only against bond with sureties and permit release on personal bond. It is unfortunate to notice that the situation has only became worse as there is negligent effort taken to alleviate the suffering of these humans protected by the same Article 21 that granted Arnab bail in a day (while a bail plea was pending in the lower court). Furthermore, the 268th Report of the Law Commission, released in 2017 examined the provisions relating to bail in the CrPC and recommended that monetary conditions of bail be invoked only as a last resort and proposed that original ID documents need to be deposited with the court as an alternative to a surety. However, these recommendations have not been incorporated into the CrPC.  

Notwithstanding the immediate need for bail reform, the State continues to use criminal laws in order to curb the spirit of dissenters. The Courts in such a precarious situation are the sole guardians of the citizens’ personal liberties. After all Justice is the first and foremost virtue sought out in the Preamble of our Constitution. Therefore, in exercising this essential power, it is essential for the judiciary to uniformly protect the personal liberties of the accused by granting them bail irrespective of their social, political or economic background.

CONSTITUTIONAL AND HUMAN RIGHTS: A RAY OF HOPE?

Article 21 of the Indian Constitution has undergone a significant transformation from strict interpretation in case of A.K. Gopalan to liberal interpretation to protect a catena of other rights in Maneka Gandhi case. By protecting personal life and personal liberty against unjust, unreasonable and unfair deprivation, it champions the cause for human rights. In the current scenario, the continued imprisonment of the accused awaiting trial is viewed as an unlawful deprivation of personal liberty. However, as of 31 December 2019, there were nearly 3.3 lakh undertrial prisoners languishing in Indian prisons. One can infer that the far-reaching implications of Article 21 have only been realised theoretically and have a far way to go to be implemented uniformly and effectively.

On the other hand, the abuse of power by the State cannot be disregarded. In our constitutional democracy governed by the Rule of Law, the police cannot be self-appointed guardians of morality. Notwithstanding the innumerable reports formulated to reform the police and the authoritative pronouncement of the Supreme Court in 2006, the State has made negligent strides in this aspect. Instead, the Government has repeatedly exploited the police, thereby, crumbling the independence and integrity of the institution of police. Although, the presumption of ‘innocent before guilty’ is universally accepted but extra-judicial killings, arbitrary arrests (without bail) and custodial torture continue to plague in society. The extent to which human rights are respected and protected within the context of its criminal proceedings is an important measure of society's civilisation. Moreover, unlawful deprivation of personal liberty especially during public emergencies is not only anti-thesis to the rule of law but also a display of the flawed priorities of the State. In this context, an expert group of the UN rightly stated that the prohibition of arbitrary detention is absolute even during the times of public emergencies. Therefore, the observations made by Hon’ble Justice DY Chandrachud for constitutional courts to protect the fundamental freedoms serve as a ray of hope to all the prisoners eligible for bail as well as persons deprived of personal liberty arbitrarily. On a rather hopeful note, we can observe the impact of his observations in the recent pronouncement of the Calcutta High Court, where a Division Bench held that, “Selective approach to personal liberty is an anathema to our constitutional scheme. Hence, it is the duty of every Court including the High Court when faced with the question of ‘bail or jail’ to bear in mind the beholden principles of parity and equal access to justice. Failure to do so, would create privileged cases of liberty accessible to few and denial of freedom to the most”.

The opinions/analysis expressed in this blog are those of the author. They do not purport to reflect the opinions or views of the SCLHR or its members.

Featured Image Source: The Daily Guardian