Balancing justice, liberty: Complexities of bail in India
Justice and liberty are consanguineous like Siamese Twins who are always arguing with each other. Justice like liberty must be absolute, argues one twin in spite of the contradiction. Absolutism causes chaos, is the metaphorical sibling’s counter argument. Either way, this catechism reflects the world’s schizophrenic relationship with civilisation’s brutal progress from the misery of the Dark Ages to today’s hyper-moral ideals, unless you are a Taliban bloodbeard who stones women to death in public for reading a book which isn’t the Koran; or a BBC journalist who reports only Hamas propaganda. Whatever be the case, both spectrums have one core: individual freedom of a degree that society can afford to serve without losing its soul. Hence when India’s Supreme Court insisted that bail is the rule and jail is the exception, a certain degree of skepticism hovers close to the contempt of court line.
As 2022 ended and freedom from the pandemic seemed near, there were 5,73,220 prisoners in various Indian jails of which 4,34,302 were undertrials; 75.08 per cent of the total prison population. Ironically the undertrial head count shot up during the pandemic. In 2022, only 23.3 per cent of the jailbirds was proven guilty and given residency. Many of the lingering undertrials are too poor to post bail, or lack obliging family and friends. In other situations, the lower courts are too happy to indulge the police, whose dharma is to ensure that their prize catches must enjoy government hospitality. It is simple police dharma.
But what the apex court meant was it is not judicial dharma to keep the detainee in jail. Thus a PFI member got away from the slammer. Umar Khalid of CAA fame got his bail application kicked out by every judge since he was thrown in the nick in September 2020. The SC adjourned his bail hearing 14 times; rather contrary to the ‘bail is the right’ observation though I’m sure they had a good reason for not tempering justice with mercy as the saying goes.
The good reason to keep a guy behind bars is dependent on the ethos of the epoch. The more barbaric the system, the more impatient and heinous the punishment. Iranian mullahs order hijabless girls to be imprisoned and raped; and rappers to be hanged in public. Kings of the 15th century came up with the lese-majesté rule that imprisoned anyone who roasted royalty in public. Blasphemers spent their sentence at home if they were socially upscale dudes like Galileo, or else, went straight to the burning pyre; not going to church just invited a fine. Bail got philosophical glam in 399 BC, thanks to Plato, an exalted and influential member of Greek society who argued for releasing Socrates on a bond. It didn’t go through and Socrates drank hemlock and left behind a philosophy that emphasised on the knowledge of virtue, that essentially describes the climate of a perfect society.
Justice systems all across the world are flawed, where virtue is an undertrial. Privatised prisons in America are hell on earth. British prisons are marked by a religious divide. Prisons in China, North Korea, Russia and Burma are transit stations to death. The primary duty of Indian justice is to overhaul the judicial system and have enlightened judges personally follow up and monitor reform in states. Or else, justice itself will be forced to stay behind bars until Benjamin Franklin’s dictum “it is better 100 guilty Persons should escape than that one innocent Person should suffer,” becomes the law of the land.