In granting bail one must balance the personal liberty of the accused with public justice. Lately, there have been many problematic bail orders both in terms of their length, what they stated as well as the conditions these orders imposed. Recently while granting bail to Som Marandi, former BJP member of parliament, and five others, the Jharkhand high court directed each one of them to deposit Rs 35,000 in the newly formed PM CARES Fund and download the Aarogya Setu app.
The contact tracing app was recently launched to fight COVID-19 and has been downloaded by more than five crore Indians though concerns about privacy have also been raised as the government may get access to a lot personal information of its citizens. The law is clear that conditions which have no nexus with the object and purpose of bail and tend to be in the nature of harassment of the individual or even an infringement of their constitutional and legal rights cannot be brought within the purview of the lawful exercise of ‘judicial discretion’.
Let us talk of other strange bail orders. In July 2019, one Richa Bharti, who was arrested for writing an offensive post on social media against Muslims, was given bail by judicial magistrate Manish Kumar Singh in Jharkhand on the condition that she should distribute five copies of the Quran to different libraries. Subsequently, this condition was withdrawn.
Justice Pratibha Rani of the Delhi high court in 2016 passed a 27-page bail controversial order in the sedition case against the then JNUSU president Kanhaiya Kumar. She did not hesitate in mentioning majoritarian rhetoric on “anti-national attitudes” in her order but ignored the established convention of keeping the bail order brief. She also, completely out of context, referred to borders being kept secure by our forces and connected this with freedom of speech. She unnecessarily indicted and stigmatised the country’s top university and asked the JNU faculty to pay the bond of Rs 10,000. She also imposed several conditions on Kanhaiya’s participation in what she termed as ‘anti-national activities’.
Earlier this year, while granting bail to Swami Chinmayanand, the former Union minister and BJP leader who was accused of sexual harassment by a female law student, Justice Rahul Chaturvedi of the Allahabad high court in his 25 page bail order made several unwarranted comments against the victim. Though the Amarmani Tripathi (2005) judgment of the apex court was quoted by the learned judge, it was not properly applied. In that judgment, the highest court had said that while granting bail, judges should keep in mind factors such as ‘character, behaviour, means, position and standing of accused.’ The accused here was too powerful and the victim really powerless but the court overlooked this vital factor. In fact, this bail order looked like the final judgment of the case, even as bail orders are not supposed to make any determination of the guilt or otherwise of the accused.
In a case about three men who allegedly murdered a young Pune techie, Mohsin Sheikh, in 2014, Justice Mridula Bhatkar observed in her six-page order that the victim was wearing, a “pastel green colour shirt and had sported a beard”. “The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicant/accused. Moreover, the applicants/accused do not have [a] criminal record and it appears in the name of religion, they were provoked and have committed murder,” the judge said while granting bail.
The order is shocking and dangerous as it rewrites the whole jurisprudence of provocation. Provocation cannot be claimed against anything which is lawful – to be Muslim, to wear a green shirt or sport a beard has not yet been made unlawful in India. Moreover, provocation cannot be voluntarily sought. In this case, the accused out of their own free will went to listen to the speeches at a Hindu Rashtriya Sena event. This was a strange justification for granting bail.
Binayak Sen was denied bail for years though he had not killed anyone. The charge against him was that he was allegedly a courier between jailed Naxal leader Naryan Sanyal and businessman Piyush Sinha because he met Sanyal 33 times, each time with due permission by jail authorities. The evidence against him comprised of a postcard written by Sanyal about his health and legal case duly signed by the jail authorities; a book on unity between CPI (Maoist) and the Maoist Communist Centre and a letter from an inmate, Madanlal Barkhade, about prison conditions. Even an appeal for the release of Sen by Noam Chomsky and 22 Nobel Laureates did not move the then UPA government which had sided with the BJP government of Raman Singh in Chhattisgarh. Finally, the Supreme Court granted Sen bail.
The Bombay high court denied bail to differently abled Delhi University Professor G.N. Saibaba who travels in a wheel chair. Even his temporary bail was withdrawn. All of Saibaba’s co-accuseds were granted bail but the principle of parity was not accepted in his case.
More recently, scholar Anand Teltumbde, who is nearly 70 and suffering from respiratory and heart diseases was denied interim bail by a special court in Mumbai though one sub-inspector posted at the offices of the National Intelligence Agency office of Mumbai tested positive for COVID-19. The civil rights activist was not immediately quarantined but was in fact taken to the court in an NIA vehicle and then moved to the crowded Arthur Road Jail. The charge against this eminent scholar is that he was a part of Elgar Parishad where the ‘conspiracy’ to congregate at Bhima Koregaon was hatched.
On the other hand, a former Gujarat minister Maya Kodyani who had been convicted for the Naroda Patiya riot case and was undergoing imprisonment of 28 years too was granted bail on July 30, 2014, on the grounds of ill-health. Similarly, in January 2020, the Supreme Court in an unprecedented order granted bail to 13 convicts of post-Godhra massacre in which as many as 33 people were burnt alive in Sardarpyra. The court asked them to undertake social service and stay out of Gujarat.
Indian bail laws
Let us now understand the law of bail, which has been around for a long time. As far back as 399 BC, Plato is supposed to have suggested the release of Socrates’ against a bond. The law of bail is a ‘cobweb’, encompassing the issues of personal liberty, public concern and interests of justice. After the 2008 amendment to Cr.PC, arrests now cannot be made in a routine manner and for an offence which is punishable with seven years’ or less imprisonment. In Arnesh Kumar (2014), the Supreme Court clearly laid down that in every arrest the police officer must ask himself why the accused should be arrested. Is it really required? What purpose will it serve? What objective it will achieve?
There are two types of crimes: bailable and non-bailable. In the former, bail can be claimed by the accused as a matter of right, in the latter bail is the discretion of the judge. In Rasik Lal (2009), the apex court itself said that bail is ‘an absolute and indefeasible right’ and ‘no discretion can be exercised’ in bailable offences. In these cases, there is no need for the public prosecutor or for the complainant to be heard.
Moreover, the Supreme Court categorically observed that ‘the court has no discretion to impose any conditions except to demand security.’ Thus conditions such as surrender of passport or non-participation in public demonstration or prohibition of making speech or appearance before commissioner cannot be imposed. Similarly, under Section 167 of Cr.PC, a person has an absolute statutory right to bail if he is accused of an offence punishable with death, life imprisonment or 10 years’ imprisonment and an investigation is not completed within 90 days and within 60 days for other crimes.
Judicial discretion in bail
In non-bailable offences, bail is discretionary and there are conditions that the judge may impose. In Govind Prasad (1975), the apex court rightly held that the granting of bail is indeed a judicial, not a ministerial act. The discretion cannot be arbitrarily exercised. In Rao Harnairain Singh (1958), the Supreme Court itself said that this discretion must be judicially exercised subject to restrictions mentioned in Section 437(1) of Cr.PC. and keeping in view enormity of charge, nature of accusation, severity of punishment on conviction, possibility of accused absconding if released on bail, the danger of witnesses being tampered with, health, age and sex of accused etc.
Under Section 337(3), if the crime is punishable with imprisonment which may extend to seven years or more, the court can impose conditions aimed at ensuring the accused’s presence at the trial, ensuring the accused does not commit a similar offence and the non-tampering of evidence. The judge may also impose ‘in the interests of justice’ such conditions as it considers necessary. Is downloading of the Aarogya Setu app a condition in the interest of justice?
Due to the concept of pecuniary ‘surety’, the archaic Indian law on bail already had a class character wherein, for the rich, bail is the rule and for the poor, invariably, jail. Justice Krishna Iyer in the Moti Ram case where a poor labourer was asked for a surety of Rs 10,000 in 1978 was pained to observe that “the poor are priced out of their liberty in the justice market.” Lately, it would appear that religion is the new class.
The judicial discretion in granting bail is not too wide and cannot be used in an arbitrary manner; sound discretion is guided by law and governed by rule, not by humour and cannot be arbitrary, vague and fanciful.
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal.