The Union Law Minister recently made a public speech in which he suggested — presuming to reflect the “thinking of the common people of India” — that the large number of bail pleas being filed add to the pendency in the country’s courts. He then proposed that these pleas should only be heard by trial courts, and should not be allowed to go to even the high courts, “forget the Supreme Court”. Now given the easy alacrity with which the common people of India could get themselves arrested, I doubt they would want their chance at bail being restricted.
The Chief Justice of India, in an apparent response, said that the higher judiciary is getting flooded with bail matters because of the reluctance of the district courts to grant bail. The CJI spoke of a latent fear amongst trial court judges when deciding bail applications of the undertrial accused who have allegedly committed “grave crimes”. Such is the hubris of being “hard on crime” that even at the stage of mere allegations, judges fear populist anger should they grant bail in such cases.
The Indian justice system is indeed overburdened. A State of the Indian Judiciary Report published in 2019 records that on average, at the district court level, a case remains pending for five years or more. If the losing side goes up in appeal, then the average time for the case to be settled may go up to 13 years. It must be said that the minister’s idea does not do anything to the pendency at the district court level. He only wants to bar bail applications from being heard in the higher courts. His argument also assumes that it is only the accused who file bail applications in the higher courts, which quite neglects the recent trend of prosecuting agencies, at least in some cases, challenging the grant of bail by lower courts up to the apex court level.
There is no dearth of informed commentary on ways to improve case management in the courts. The law minister’s prescription of somehow banning bail pleas from the higher courts is also one way, I suppose — even though it has an adverse bearing on the right to access justice. There are other ways of thinking about the problem, some of which do not breach any rights. It might be worthwhile to focus our attention on the excess in the justice system. There are very few restraints on the filing of avoidable cases, and often the government is the biggest litigant in the courts. The various departments of the central and state governments are a party in 46 paper cent of all cases.
There is a serious need also to review the superfluous cases that are forced into the system by investigating agencies and by the tendency to make gratuitous arrests, in the face of overwhelming pendency in Indian courts. We must remember that each arrest is an additional case before the magistrate in an already overburdened justice system. It thus impacts the right to access justice, and also the more fundamental right to personal liberty.
I encountered a case where a slum-dweller registered a complaint against some men who had looted and assaulted him. A criminal case was duly registered and the magistrate summoned him as a witness in his own case. In the interim, his house was demolished in an anti-encroachment drive and he was moved to another area. The summons remained undelivered. The magistrate got annoyed and issued a non-bailable warrant of arrest against him. This time, armed with a warrant of arrest, the local police found him at his new address, and duly arrested him. He was even presented before the magistrate, who rather mechanically remanded him to judicial custody. Eventually, a bail application had to be moved. In our country, the contingencies of peoples’ lives seem to breed criminal cases.
As a principle of law, the “arrest” or remand of an accused should take place at the end of the investigative process, when the police are ready to confront the accused with evidence gathered and formally charge him immediately thereafter. The process of investigation, especially in the wired world, should ideally not be dependent on keeping the suspect in custody and badgering him for information. Once charged, the accused is remanded to judicial custody (or custody of the court) with the express purpose of facing trial for the alleged offence. When the accused is granted bail, he is entrusted to the custody of his sureties, who are bound to produce him to appear at his trial at a specified time and place. Thus, the purpose of “arrest” is to ensure appearance at trial, and not as an “aid to investigation” as is commonly understood.
In India, this common law principle has been lost over the years. The law here permits the police to arrest a person on “reasonable suspicion” of him having committed an offence. The practice is to arrest people on suspicion and then interrogate them in custody, thus treating arrest as an “investigative tool” rather than the culmination of the investigation. The suspect may be kept in custody for up to 90 days before the police formally charge her. On the other hand, most common law jurisdictions allow only between 12 hours to four days of pre-charge detention.
In India, suspects are routinely arrested much before the stage where the police are ready to press charges and adduce evidence in court. When arrests are made easily, as an investigative tool, it floods the system with “suspects”. Rather than the investigating agencies sifting through the cast of characters, and available evidence, everyone is simply arrested and put into the criminal justice system. Not too long ago, a public prosecutor genuinely expressed surprise at the defence counsel’s vociferous opposition to the suspect’s continued detention. “Why are you opposing custody, when you know investigations are going on? We don’t know what the investigations will reveal, and neither do you. If we don’t find that he is involved, he will come out eventually.” Thus, it is left for the courts to do the work of sifting through the evidence to decide which of the lot, if any, can be held guilty in law.
Typically a criminal trial could take anything between 5-10 years. Naturally then, for those under-trials who are detained pending trial, the only remedy is to keep filing bail applications. On the other hand, if we were to take the law minister’s proposal seriously, it would result in persons who have not been held guilty – they are merely awaiting trial, spending up to 10 years in prison, in the absence of bail. A much better idea might be to make arrests and mechanical custodial remand more restricted and de-clog the system. Otherwise, the citizen is twice affected: First, by being vulnerable to arrests in a system that takes an increasingly expansive view of the need for incarceration, and second because each such arrest causes the already overcrowded justice system to further flounder.
The writer is a Supreme Court lawyer