The Supreme Court, on September 9, passed an order granting bail to journalist Siddique Kappan. He has been in custody since October 6, 2020. The bail now granted is a gesture of compassion with a sense of constitutional duty. It is a moment of relief for many in the media who fought for his release.
The charge against Kappan was that he carried literature demanding justice for the Hathras gang rape victim. Chief Justice U U Lalit, while granting bail to the journalist, emphasised the citizen’s right to free expression and propagation of ideas. Justice Ravindra Bhat, who too was on the Bench, indicated that even rape laws in the country were reformed following a public protest.
In the instant case, Kappan was charged under the Unlawful Activities (Prevention) Act (UAPA), along with certain provisions in the Indian Penal Code and the Information Technology Act. But for the charges under the UAPA, he would have been, probably, released earlier. The long delay in his release is also the result of the invocation of the draconian law.
The freedom index of a nation is always discernible from its police stations and prisons. Bail is not merely a rule. It is the rule of democracy. Jail is not merely an exception; it is a predicament that a mighty state imposes upon a helpless individual.
In recent times, with the release of Teesta Setalvad, Mohammed Zubair, Varavara Rao and the like, who were essentially political prisoners and undertrials, the Supreme Court has done well by performing its role, at least to a limited extent.
However, many prisoners of conscience are still languishing in jail for the offence of being dissenters.
In India, the judicial philosophy against unnecessary or vexatious arrest and detention is almost well settled. In Gurbaksh Singh Sibbia (1980), a Constitution Bench of the Supreme Court took a liberal view on pre-arrest bail.
The idea that anticipatory bail could be granted only in exceptional cases was repelled by the top court in Siddharam Satlingappa (2010). The court explained the idea of liberty. It said that “no arrest should be made because it is lawful for the police officer to do so” and that “the arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances” of the case. It was a grand reiteration of humanism in Gurbaksh Singh Sibbia.
Very recently, in Satender Kumar Antil v. CBI (2022), the Supreme Court went further. The court affirmed the earlier judicial admonition against arbitrary arrest and detention indicated in Sanjay Chandra v. CBI (2011), Arnesh Kumar v. State of Bihar (2014), S. Kasi v. State (2020) and Arnab
Goswami v. State of Maharashtra (2020). It explained the fundamental postulates of penal law, like the presumption of innocence and the constitutional rights of the accused. It explained the liberal provisions in the Criminal Procedure Code (CrPC) to say that arrest is not inevitable in all cases. The most significant part of the judgment in Satender Kumar is that it appealed for the promulgation of a Bail Act in India in tune with those prevailing in certain other jurisdictions.
According to the 2020 report of the National Crime Records Bureau (NCRB), there are 4,88,511 prisoners in the country. Out of them, 3,71,848 (76%) are undertrials. Of this, 68% were found either illiterate or dropouts from schools.
In India, a discourse on bail jurisprudence should address two fundamental issues, namely, judicial attitude to the bail pleas at the ground level and the prevalence of draconian statutes like UAPA, which
creates legal obstacles against the grant of bail.
Last July, while addressing judges of the subordinate judiciary, Justice Sanjay Kishan Kaul of the Supreme Court openly called for a humanistic approach to criminal prosecutions. The judge, among other things, said that denying bail foreseeing the possibility for acquittal is neither correct nor judicious. The long delay in deciding the bail plea is another issue. Recently, a Supreme Court Bench of Justice Ajay Rastogi and B V Nagarathna disapproved of such practice adopted by Chhattisgarh High Court. In many high courts, this procedural aberration is a harsh reality.
Sometimes, delay in hearing the appeals against conviction perpetuates the punishment imposed by the trial court by the continued incarceration of the accused. The Supreme Court recently opined that, in normal circumstances, “all persons who have completed ten years of the sentence and appeal is not in a near proximity of hearing” should be released on bail.
The proposal for Bail reforms in India was made in the 268th report of the Law Commission. The Bail Act of New South Wales (2013) is meant to ensure “the integrity of the justice system” and “the general right to be at liberty”. The purpose of this enactment is “to provide a legislative framework” to test the requirement of detention of the accused. The Bail Act of the United Kingdom (1976) is another
significant model.
However, in a country where even political prisoners had to seek judicial order to obtain straws or mosquito nets, the criminal law loses its functional characteristics. Then, the practice of the law becomes antithetical to its own content. The generous provisions in CrPC or the judgments
on bail often do not come to the rescue of the person who really needs them in a concrete situation. On the ground, India suffers attitudinal deficits and issues of proper law enforcement.
We need to rewrite our laws wherever they are contrary to modern bail jurisprudence. Rather than a new law on bail, the judiciary at the grassroots level needs to develop compassion for the poor and the indigent and an understanding of their plight. It should assert that the detention of an individual is not a matter of routine. Ideally, the trial courts should be able to fix liability on the state for detaining the accused under draconian laws by treating them as victims of such laws.
The courts in India should also oversee and ensure the proper implementation of the benevolent provisions already existing in the CrPC. If we can do this course correction, a separate Bail Act may not even be necessary. In the absence of such introspection, even a new Bail Act might not fully help us.
Lawyer, Supreme Court of India