The Supreme Court’s landmark Balchand judgment (1977) laid down ‘bail as the norm’, and reiterated this in several later judgments.
The Supreme Court’s landmark Balchand judgment (1977) laid down ‘bail as the norm’, and reiterated this in several later judgments; various HCs have pronounced on this, too—just last month, the Delhi HC had said that “overcrowding of jails … leaves undertrials with the inevitable impression that they are being … treated unfairly by the system.”
The Nagpur bench of the Bombay High Court, last week, said bail can’t be denied to mete out pre-trial punishment to an accused or mollify society outraged by the presumed criminality of an accused. The court said this in connection with a bail petition in a suicide case, but made very important observations that should apply to bail in general. It said that mere existence of a prima facie case against the petitioner can’t be the sole factor in deciding whether to grant bail or not; the severity of the offence and the status of the accused also needs to be taken into account.
The Supreme Court’s landmark Balchand judgment (1977) laid down ‘bail as the norm’, and reiterated this in several later judgments; various HCs have pronounced on this, too—just last month, the Delhi HC had said that “overcrowding of jails … leaves undertrials with the inevitable impression that they are being … treated unfairly by the system.” Yet, the fact that the criminal justice system—from investigation to hearings—has failed to internalise this became evident recently in the death of the 84-year-old tribal-rights activist, Stan Swamy, who had been in jail since October 2020 under the Unlawful Activities (Prevention) Act. At the time of his death, the Bombay HC was yet to begin hearing on his ‘bail on merit’ petition.
The National Investigation Agency, under the Centre, had repeatedly opposed his bail without having sought custody of even a day to interrogate him. It is not just Swamy—not even lawyer-activist Sudha Bharadwaj whom Harvard had honoured or Anand Teltumbde, who taught at IIT Kharagpur—or the many political prisoners who have suffered prolonged incarceration to mollify public rage or as pre-trial punishment. As per the NCRB’s Prison Statistics India 2019 report, against a capacity of just over 4 lakh, jails in India house 4.78 lakh inmates. Close to 70% of the inmates are under-trials and detenues. Overcrowding and shortage of prison staff (prisons in the country are almost a third short of the sanctioned strength) makes for a deadly cocktail for prison administration; beyond the purely infrastructural grounds, there are compelling reasons of justice and human rights. Incarceration seems to typically affect the marginalised; 70% of the under-trials were either illiterate or hadn’t completed formal schooling, while 66% belonged to the SC, ST, OBC categories.
Continued incarceration—5,011 under-trials, at the end of 2019, had been in prison for over five years, with Uttar Pradesh accounting for 42% of these—assaults the right to judicial reprieve in many cases. While 1,535 under-trials were eligible for release, at the end of 2019, under Section 436A of the Criminal Procedure Code—which limits jail-time for under-trials to half of the maximum sentence for the offence they are charged with (if the maximum punishment is not death)—only 635 had been released; the problem, again, is especially bad in Uttar Pradesh.
The judiciary and investigative agencies that play a role in the criminal justice system should certainly be more sensitive, but the legislative must do its bit too—draconian laws like the UAPA that give the state sweeping powers of detention must be modified or repealed. There are enough examples the law lending itself to a culture of indemnity for investigating agencies and governments in attacking dissent.
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