Jail an Exception, Bail is the Rule: Law Panel’s Views Make Sense

Law panel says, undertrials deserve a legal remedy in the form of bail when they’ve served a certain period in jail.

Reflecting on the socially critical subject of granting bail, I cannot but begin by drawing the reader’s attention to a famous statement by the venerable late Justice VR Krishna Iyer: “Bail is the rule, and jail is an exception”. I also can’t forget to salute a past legend of a police officer, RF Rustamji, who was IG Madhya Pradesh (and a favourite of our first Prime Minister Pandit Jawaharlal Nehru) and later went on to set up the Border Security Force (BSF) in 1965.

Later, he was rightly made a member of the first National Police Commission (NPC) in 1977. In that capacity, he went to a few overcrowded prisons in some states, possibly unannounced, and found that thousands of aged and sick prisoners were languishing for countless number of years, without any hope of being released, because of the soulless judicial system.

He was shocked and wrote a series of articles in The Indian Express which shook the conscience of the nation and led, at least, to a mass release of undertrial prisoners.

Arbitrariness in Granting Bail

Reform bodies, beginning with the NPC, have been stridently vocal that bail practices in the country are extremely arbitrary, and therefore unjust, requiring thorough overhaul. No major reform – except for some tinkering with the law on anticipatory bail – has, however, taken place.

This is despite the general consensus that drastic reform is absolutely necessary if India wants to proclaim to the rest of the world that its respect for human rights is no less than most other western democracies.

It is, therefore, fortunate that the recently released 268th Report of the Law Commission of India is categorical, that if our criminal justice system has to acquire some credibility as a fair and balanced set of rules and regulations, some substantial steps should be taken about how an arrestee is treated.

The Commission confirms all that we know: the rich and famous get favourable treatment, and the poor are harassed.

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Decisions about custody or release should not be influenced to the detriment of the person accused of an offence by factors such as gender, race, ethnicity, financial conditions or social status.

268th Report of the Law Commission of India

Using Discretion

This is exactly what is now happening. Neither the law enforcement agencies nor the courts seem to be creditable in this area. I distinctly remember an incident that happened, way back in 1966, when I held a field job for the first time after completion of training. Two prominent personalities of the town, where I was headquartered, were caught in a shady place under the influence of liquor. They were not alone, but part of a large, infamous and motley group.

After registration of the case under the Prohibition Act, and possibly under some other law as the Gaming Act, they were released on bail on a personal bond. When the FIR reached the sub-divisional magistrate, he was furious and took umbrage at the police action, that of releasing the accused on bail, for what were non-bailable offences. I stood my ground to say that the police were competent to release or not release the arrested persons, and we exercised our discretion lawfully, and the SDM had no business to object to what we had done, unless he could prove that it was a dishonest decision.

That was the sadism which marked some wings of the judiciary.

Some police investigators, including those in the CBI, are no less guilty of dubious exercise of authority in effecting arrests, which could be lawful, but were not mandatory or justified.

I also recall how the personal spat between M Karunanidhi and Jayalalithaa led to the ludicrous imprisonment of both, each when the other was in power.

In Jail for Offences Charged NOT Proved

Even if you discount these instances as individual aberration, overcrowded prisons is a practical reality. A large percentage of prison inmates are undertrials who are locked up for several months, pending court disposal of cases against them.

Given the sloth that dictates our court proceedings, many undertrials are kept inside for terms which approximate those prescribed by the law for offences with which they are charged.

If they are eventually convicted, no great harm is caused because their detention period as undertrials can always be set off against the statutory penalty. But what about the harm caused to those who are finally acquitted? This is a real danger.

This is why, in less serious offences, namely those which attract a sentence of less than three years (or less than seven years as the Law Commission has most magnanimously recommended), it is rational and just to release an arrested person on bail at the earliest. This is particularly so when the crime in question was non-violent and there was no threat to peace because of the release of a detained individual.

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Recommendations by the Law Commission

• Undertrials who’ve completed one-third of the maximum sentence for offences up to seven years be released on bail.
  
• Undertrials who’ve completed one-half of their sentence for offences punishable with a sentence of more than seven years should be given bail.
  
• Legal provisions for remission should be provided in cases where an undertrial has endured the full length of maximum sentence.

Releasing the Accused

I wholly endorse the Law Commission’s recommendation that in trials, with punishment of seven years or less, the prisoners should be released on bail, after they have served one third of the term, even if the court proceedings are pending.

By the same token, those who are facing a sentence of more than seven years, should be released once they complete half the term. Nothing can be saner or more civilised. The Law Commission is greatly logical when it says:

“Prolonged periods in prison where undertrials and convicts were not segregated would only make hardened criminals of the former.”

It is due to certain vested interests, sadistic and inhuman individuals, who are opposed to such a logical reform.

It is imperative that we show more sympathy vis-à-vis the offending fellow citizens, particularly when we know that a large number of those parading in society as great people, who should be inside prisons and not outside, and have managed to escape the long arms of the law through deceit, power and abuse of authority. This is a pathetic state of affairs which calls for correction on a priority basis.

Also Read: Like NYPD, How About a ‘Sentiment Meter’ for the Indian Police?

(Dr RK Raghavan is a former CBI Director. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)