The concept of bail in criminal law is based on the presumption of innocence. One may be suspected of being an offender,but one cant be deprived of ones freedom on mere suspicion. This principle is a bedrock of our constitutional and criminal jurisprudence,as it is for most of the world. It exists because the law of the land gives the state an overwhelming power of coercion against its subjects which,if misused,can lead to a complete breakdown of constitutional and political process as well as any hope for an honest society. In fact,think of the Emergency,and the first symptom of despotism that comes to mind is the arbitrary detention of people without trial and without the possibility of bail.
There are,of course,good reasons for the concept of pre-trial detention. There may be a genuine apprehension of the suspect going into hiding or the suspect may be a person capable of influencing the investigation,destroying evidence or swaying witnesses. This,of course,is a matter of subjective satisfaction and the judge makes up his or her mind,according to certain set principles,as to whether custody is required or not. As the Supreme Court has noted in Joginder Kumars case,an arrest need not be made as a matter of routine,but should be made after taking into due consideration the facts and circumstances of the case. The factors to be considered while granting or denying bail are the seriousness of the crime,existence of a prima facie case against the accused and the likelihood of the accused interfering with the investigation and absconding from justice. Arrest and remand to custody,if these are deemed necessary,should ideally be for a reasonable period to ensure the integrity of the investigation is maintained unless there is a real possibility of the accused absconding.
We are not a country,unlike,say,the US or the UK,where bail is a rule and not the exception. The cases of Dominique Strauss-Kahn and Bernie Madoff are examples for this. Contrast this with the Indian scene where politicians and industrialists have been in jail in cases related to 2G spectrum and the Commonwealth Games for months. In the 2G spectrum trial,the accused have been denied bail even though investigation,at least as far as the 2008 allotment of licences is concerned,is completed,and the trial court has initiated hearing arguments on charges. The arrest of suspended IPS officer Sanjeev Bhatt in Gujarat is another instance where there seems to be little scope for him to interfere in the investigation,considering that the aggrieved party is the state government. These are cases where the grant of bail,or the refusal to do so,has become a cause for public interest and even concern.
What is apparent from looking at public responses is that arrest and custody is viewed popularly as a crucial part of the process of administering justice. But while bail has everything to do with the rights of the accused,it is wholly irrelevant for the purpose of deciding his or her culpability. Whether A. Raja and his co-accused in the 2G spectrum case remain in jail for the duration of the trial has no bearing on whether they will be convicted or not. Similarly,Bhatts incarceration has no meaning in and of itself unless there is evidence against him. In fact,even if one ignores the high-profile cases,there are many cases where a person is wrongly imprisoned,say,on the basis of a false complaint,while the trial crawls to an acquittal. The mere existence of a culture where bail is seen as an exception seriously affects the life of the accused person. There can be but little joy in an acquittal when someone has already spent years in jail for crimes they did not commit.
Three years ago,the government sought to bring in an amendment to the Code of Criminal Procedure according to which the police would have to assign special reasons if they wished to arrest any person accused of a crime that was punishable with imprisonment of less than seven years. Under this,people accused of less serious crimes would not have to face the threat of police custody and could avoid the expense of fulfilling the conditions for bail. The justice system cannot be reformed simply by pouring more money into courthouses and law schools. Innovative solutions have to be thought up to deal with problems that do not seem to be going away. Many countries have provisions for imposing stringent conditions,including electronic tracking of the accused who are out on bail. Take away their passports and restrict their movement if you must,but why make anybody spend days,weeks or years in jail when there is no pressing need to do so?
The writer is a Delhi-based lawyer