The Indian criminal justice system discourse usually affirms the cardinal rule of the presumption of innocence. However, the “Prison Statistics of India 2020” paints a rather gloomy picture. The fact that 76 per cent of prisoners are undertrials indicates that this principle is followed in the breach.
The large percentage of undertrials in prison and pre-trial detentions are often a result of the unfair application of bail provisions. Primarily, this is because of unnecessary arrests by investigating agencies. The first decade of the 21st century witnessed a series of amendments in provisions pertaining to arrests and bail. The modifications under Section 41 and incorporation of 41A in the Code of Criminal Procedure (CrPC) were significant attempts to reduce the number of arrests by the police in offences punishable by up to seven years of imprisonment. These initiatives had the potential to reduce custodial violence and lower the burden on courts.
However, despite these amendments and repeated directives by the courts about the judicious application of Sections 41 and 41A by investigating agencies, the proportion of bail applications pending before district courts, high courts and the Supreme Court largely remained unaltered. The police continue to take a mechanical approach that regards detentions as the only effective option to complete the investigation. This defeats the objective of these provisions.
In the second week of July, in Satender Kumar Antil v. CBI, the Supreme Court asserted the mandatory compliance of the less-used provisions of 41, 41A. It affirmed its 2014 verdict in Arnesh Kumar vs State of Bihar, which directed state governments “to instruct its police officers to not arrest the accused automatically when the offence is punishable with imprisonment for a term which may be less than seven years”. The Court also said that investigating agencies are accountable for compliance with Section 41 and 41A. It reiterated the importance of the “bail over jail” rule and issued a slew of guidelines to prevent unnecessary arrest and remand.
The Court laid down a step-by-step procedure to ensure that the rights of the accused, as well as that of the society at large, are respected. It suggested the enactment of a Bail Act to inject clarity in bail-related matters and asked the government to take a cue from the US, UK, Australia, New Zealand and many other legal systems as well as the 268th Law Commission report. Such a piece of legislation will not only make the granting of bail simpler but also make explicit the conditions when bail cannot be granted under the Indian Penal Code, Special Acts and for economic offences.
The possibility of Satender Kumar Antil v. CBI turning the tide against pre-trial detentions is being debated in the legal fraternity. A section of commentators does not seem optimistic given that the arrest of the wrongdoer is seen as an effective redressal mechanism by the victim and anything less than immediate detention by the police officer (notice for appearance u/s 41A) is considered a sign of complacency of the authorities. Moreover, Section 41A has provisions that mandate the immediate arrest of the accused. Apprehensions about the lower courts abiding by the spirit of the judgment have also been raised.
Within a fortnight of Satender Kumar Antil v. CBI, the Supreme Court in Vijay Madanlal Chaudhary v. Union of India (PMLA case) upheld the arbitrary conditions of bail under Section 45 of the Prevention of Money Laundering Act, thus discarding the “presumption of innocence” principle. Two SC judgments that seem at odds with the other in a fortnight have perplexed several legal scholars.
Operations of investigating agencies should not be seen in isolation from that of courts. The conflicting and ambiguous approach of courts towards pre-trial incarceration and bail provides a justification of sorts to investigating agencies when they flout due processes. That’s one reason Indian jails are flooded with undertrials. The confusion created by the two decisions of the apex court reinforces the need for a Bail Act. Investigating agencies need to sync their approach with the principles of natural justice. Police officers need to be objective in deciding the need for arrest and the practice of routine arrests should be done away with.
(The writer is Assistant Professor, USLLS, Guru Gobind Singh Indraprastha University, Delhi)