MODI’S CLAIM
Prime Minister Narendra Modi, while addressing a campaign rally in Uttar Pradesh’s Saharanpur on Friday, 5 April, claimed that the Congress’ “dishonest” manifesto states that, if elected, the party would grant bail to those committing crimes against women.
"What the Congress has written in its dishonest manifesto implies that those who commit crime against women will not go to jail, but get bail. Will the nation forgive people who think like that?" he had said, as per ANI.
WHAT THE CONGRESS MANIFESTO SAYS
Amend the Code of Criminal Procedure and related laws to affirm the principle that ‘bail is the rule and jail is the exception.’ (Page 35, under Review of Laws, Rules and Regulations)
IS PM MODI’s CLAIM TRUE?
PM Modi’s claim is highly misleading.
First, the Congress manifesto doesn’t specify that the ‘bail not jail’ principle will specifically apply to crimes against women.
Secondly, the proposal in the Congress manifesto would not be a change from the law as it stands. The position in law is already that bail should be the rule, and jail the exception, unless certain conditions are met.
The grant or refusal of bail is within the discretion of a judge, but this has to be exercised while keeping this principle in mind, and any deviations from the principle have to be reasonable – failure to do so can lead to a reversal of the judge’s order.
Multiple judgments of the Supreme Court have held that the principle to be taken from the Code of Criminal Procedure is that grant of bail is the rule and refusal is the exception, and that this isn’t some recent formulation but is almost a century old.
See for example Dataram Singh vs The State Of Uttar Pradesh (2018), Nikesh Tarachand Shah vs Union Of India (2017, which contains a detailed history of the law on this point), Gurbaksh Singh Sibbia vs State Of Punjab (1980) and Justice Krishna Iyer’s oft-cited order in State Of Rajasthan, Jaipur vs Balchand @ Baliay (1978).
The Congress proposal evidently seeks to affirm this principle which has come out of case law, by expressly writing it into the Code of Criminal Procedure 1973, thereby avoiding the risk that judges will fail to apply the principle.
The failure of judges to apply the principle is something which Justice Lokur actually warned of in the Dataram Singh case mentioned above.
Thirdly, the principle of bail not jail doesn’t mean that a person will get bail in all circumstances. The case law identifies a number of exceptions to this principle, and factors which can lead to a refusal of bail including the seriousness of the offence, the risk that the accused will abscond, destroy evidence, threaten witnesses, commit further offences or repeat offences.
As the law currently stands, this is how even the more serious crimes against women like rape are currently treated: The accused is supposed to get bail, but because the offence is serious and there is a strong likelihood they will repeat the offence or intimidate the complainant, bail is likely to be refused.
The proposal by the Congress wouldn’t change this position at all.
The Code of Criminal Procedure 1973 clearly envisages that bail is the rule for bailable offences (less serious cases where bail can be granted without judicial discretion) and also for non-bailable offences (more serious cases, where a judge needs to decide if bail can be granted).
Section 437 sets out some conditions under which bail cannot be granted, such as previous convictions for serious offences. The other exceptions such as threats to witnesses, risk of evidence tampering, etc, will continue to apply.
Fourthly, a number of crimes against women are currently bailable offences, which means there isn’t even a need for a judge to decide on bail, and the bail not jail principle most certainly applies to these.
These include Section 354A (sexual harassment and assault), Section 354C (voyeurism) and Section 354D (stalking) of the IPC.
The Ministry of Home Affairs is currently in possession of a proposal to amend the law to make these provisions non-bailable, submitted by Dr Shashi Tharoor (and co-authored by The Quint), and this was also the subject of private member’s bills by Dr Tharoor and Husain Dalwai.
The BJP government failed to respond to the proposal or the private member’s bills and RTI requests regarding the proposal were not answered.
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