Updated: November 10, 2021 7:38:03 am
The wholly unjustified arrest of the former chairman of the State Bank of India came close on the heels of the wholly unjustified arrest of Aryan Khan. Public memory is cruelly short and we have forgotten the fatal incarceration of 84-year-old Father Stan Swamy, the arrest — and denial of bail — to journalist Siddique Kappan, Rhea Chakraborty and many others who would not have been arrested in any democracy where the rule of law prevails.
Article 21 of our Constitution loftily states: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court has repeatedly laid down directions that make the granting of bail the rule, and jail the exception. It is a scandal that these directions are repeatedly ignored by trial courts and jail has now become the rule and bail the exception even in petty bailable offences. If a case is even slightly sensational, it is almost certain that an accused will not be granted bail till his case reaches the High Court. And, if Aryan Khan had been an aam aadmi, it is also certain that he would have spent several months in jail before his case even reached the High Court.
Undoubtedly, there are conflicting issues in granting bail. On the one hand is the personal liberty of the accused or the suspect and on the other, it is the interest of the community as a whole. No one can argue that every suspect should be released on bail, but it is time to seriously consider whether the practice of creating too many non-bailable offences and the routine denial of bail subserves the public interest at all. To start with, laws imposing almost impossible conditions for the grant of bail have to be amended. Section 45 of the Prevention of Money Laundering Act, 2002 requires the judge to be satisfied that there are reasonable grounds for believing that the accused is not guilty of “such offence” and that he will not commit “any offence” while on bail. Similar conditions exist in the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Unlawful Activities (Prevention) Act, 1967 as well. Barring the clearest of cases, how can a judge form the belief that a person is guilty or innocent at the initial stage? And how does the judge have the clairvoyance to predict the possibility of an accused committing an offence while on bail? Other areas that need urgent reform are the archaic requirement of furnishing security in every case and the considerable delay in releasing an accused even after a bail order has been passed.
The practice of making stringent criminal law provisions in tax and economic offences started in 1975. Every director or senior executive was presumed to be guilty and the burden was on them to prove their innocence. Each accused was presumed to have criminal intent and imprisonment was mandatory if the tax or duty was more than one lakh rupees. Thus, the fundamental principles of criminal law were turned on their head in the hope that draconian provisions would instil fear and tax compliance would increase. Just the reverse happened as the repeated samadhan and amnesty schemes have proved.
The unchecked tendency of arresting senior bank officials, company executives and civil servants must also stop immediately. Apart from being in complete violation of repeated and mandatory directions of the Supreme Court, it has a devastating and chilling effect on the decision-making process in banks and other institutions. In the 2G scam, more than a dozen senior executives languished in jail for more than 12 months, only to be acquitted later.
Indeed, there is no evidence that the practice of refusing bail has lowered the incidence of crime. On the contrary, it has resulted in almost 70 per cent of all prisoners being “undertrials”. Several of them await trial for years. The sad reality is that every undertrial is treated as guilty until he proves his innocence by getting an acquittal.
The decriminalisation of several provisions of the Companies Act, 2013 through the Companies (Amendment) Act, 2020 was indeed a great initiative and similar amendments can be made in several Central and state enactments. The Supreme Court should take suo motu notice of the unacceptable arrest raj and issue urgent directives until the Centre and states make amendments or issue ordinances. Moreover, it is also vital to sensitise judges to the importance of bail, particularly when most of the poor and illiterate accused have little or no access to legal assistance. There is also an extremely urgent need for the Supreme Court and high courts to send clear signals to the lower courts that the granting of bail will be the norm and no subordinate judge will be penalised in their career prospects for granting bail.
In the case of the former SBI chairman or Aryan Khan and so many other accused, what was the need to arrest them? What fatal result would have ensued if they were asked not to leave the country and report daily for investigation? Even if a transaction appears tainted by extraneous consideration, it can always be investigated and the guilty punished. But making an arrest at the FIR stage destroys a person’s reputation; a subsequent acquittal may heal the wound but the person will remain scarred for life.
This column first appeared in the print edition on November 9, 2021 under the title ‘Stop the arrest madness’. The writer is a senior advocate
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