Opinion How to resolve the issues flagged by Justice D Y Chandrachud on bail

Chief Justice of India D Y Chandrachud’s observations on trial courts being reluctant to grant bail to accused are significant. Speaking at an event organised by the Bar Council of India, the CJI said the reason the higher judiciary is flooded with bail cases is because of a certain reluctance from trial courts to grant bail. The CJI spoke about a “sense of fear” in judges in district courts in granting bail, especially in cases involving heinous crime. “This sense of fear nobody talks about but, which we must confront because unless we do that, we are going to render our district courts toothless and our higher courts dysfunctional,” he said. When there are over four crore cases currently pending in district courts and 76 per cent of the prisoners in jails are undertrials, the CJI’s assessment of the issue has great significance to safeguarding personal liberty of individuals.

In an interview to this newspaper, Chandrachud’s predecessor, U U Lalit, acknowledged that trial courts have very little discretion because laws are increasingly stacked against granting bail. Special laws such as Prevention of Children from Sexual Offences Act, Scheduled Caste/Scheduled Tribe Atrocities Act or NDPS law are designed to ensure that bail can be granted only when strict statutory conditions are satisfied. The language of these laws leaves trial judges with very little room to grant bail. To add to the issue, the higher courts too on occasion interpret bail provisions strictly, virtually tying the hands of trial courts. For instance, when it comes to UAPA, a 2019 ruling of the Supreme Court states that trial courts must accept the state’s case without examining its merits while considering grant of bail. The pressure faced by courts of first instance, when it comes to sensational heinous crimes is not new. Judicial reasoning has long included the dubious “collective conscience of the society” in place of evidence-backed rational decision making. The problem lies also in the same structural inequities in accessing justice: Even when bail has been granted, ability to afford bail bonds becomes an issue. Studies show that two in three undertrial inmates belong to either Scheduled Caste, Scheduled Tribe or Other Backward Classes.

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The CJI spoke of instilling a sense of confidence in the district courts, starting from doing away with the nomenclature of subordinate or lower judiciary. While the acknowledgement of the judicial culture driven by fear by the CJI himself is an encouraging first step, the challenge is to find solutions. It is not as if all district court judges are afraid of being targeted. Backing the radical orders of trial courts will inspire confidence in standing up to pressures of the day. The onus is on the judiciary.