Bail: Strengthen the public legal aid system

The denial of bail not only goes against the constitutional freedom of movement and right to life, which cannot be arbitrarily curtailed until guilt is proven, but also leads to overcrowding in jails
Out of the 488,000 prisoners in India, roughly three-fourths are undertrials, say the country’s latest prison statistics (Getty Images/iStockphoto) PREMIUM
Out of the 488,000 prisoners in India, roughly three-fourths are undertrials, say the country’s latest prison statistics (Getty Images/iStockphoto)
Updated on Jan 25, 2022 08:29 PM IST
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ByHT Editorial

The Supreme Court (SC) on Monday said people can’t be kept in jail for an indefinite period of time on the hypothetical apprehension that their activities could involve a larger conspiracy that could hurt national security. The observation was made by Justices DY Chandrachud and Dinesh Maheshwari while granting bail to Md Enamul Haque, the alleged prime accused in a trans-border cattle smuggling case filed by the Central Bureau of Investigation.

The emphasis on the “bail, not jail” judicial philosophy is not new. In 1977, Justice Krishna Iyer (State of Rajasthan v Balchand) laid it down as one of the basic rules of legal proceedings. Last year, an SC bench clarified that a court doesn’t need to give elaborate reasons while granting bail. Despite these directives, jail, not bail, seems to have become the rule in a disturbing number of cases. Nearly 91,568 bail pleas are pending in high courts, while 196,000 are waiting for a hearing in the district courts. The denial of bail not only goes against the constitutional freedom of movement and right to life, which cannot be arbitrarily curtailed until guilt is proven, but also leads to overcrowding in jails. Out of the 488,000 prisoners in India, roughly three-fourths are undertrials, say the country’s latest prison statistics.

The reason behind such a large number of under-trials is that the public legal aid system is broken. “It is a travesty of justice”, as Justice PN Bhagwati once remarked, that many poor accused are in jail because the “bail procedure is beyond their meagre means”. Many languish in jails without any information about their case and don’t have a lawyer to file a default bail petition if the charge sheet has not been filed within the statutory 90 days. The courts must be liberal with bail. And as the India Justice Report 2021 showed, a key step will be to improve the legal aid system to ensure that the “bail, not jail” judicial philosophy is followed in letter and spirit.

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Friday, May 27, 2022