Make bail the norm, not jail

The Supreme Court has drawn new red lines around bail jurisprudence and underlined the importance of preserving a person’s liberty in two separate instances over the past week

The Supreme Court has drawn new red lines around bail jurisprudence and underlined the importance of preserving a person’s liberty in two separate instances over the past week. In the first, while granting bail to journalist and fact-checker Mohammed Zubair — the detailed order of the judgment was made available on Monday — the court acknowledged that multiple First Information Report (FIRs) against the same person was rendering legal protections meaningless and creating a “vicious circle” that ensured that the process became the punishment (an observation also made by Chief Justice of India NV Ramana recently). In the second, a two-judge bench pulled up the Uttar Pradesh (UP) government for failing to consider the release pleas of inmates for more than a decade and said that the court would issue a blanket bail order in the 853 cases if the state is unable to take a decision in two weeks.

Strengthening the legal aid system, reducing the primacy of financial and social power in the legal process, and training the police to not use the power of arrest as a blunt weapon will help ensure justice for the 370,000-odd people who continue to languish in jail without any conviction. (Burhaan Kinu/HT PHOTO)

The top court’s renewed push to make bail the rule and jail the exception — four decades after it laid down the principle — is an encouraging sign when vaguely worded statutes are instrumentalised to harass dissidents, political opponents, and civil society members. That the court disapproved of the multiple FIRs tactic, asked the police to use its power of arrest sparingly and only after a thorough probe, and upheld the importance of individual liberty and constitutional protections should give pause to authorities, who have proved only too keen to target people over flimsy complaints. Moreover, the SC’s unhappiness at bail applications in the UP case should signal to the subordinate judiciary that siding with the prosecution on sensitive cases without adequate perusal of the evidence and charges must be discouraged.

As this newspaper has noted before, it will take a lot more — notably a change in the mindset of judicial magistrates who act as the first arbiters of a person’s liberty and the police, which needs to desist from political considerations while framing charges and reject complaints that are unconvincing and thin on evidence and harm. The government and judiciary must come together to not only make bail the norm but also easier to secure for people away from metros or without access to top lawyers. Strengthening the legal aid system, reducing the primacy of financial and social power in the legal process, and training the police to not use the power of arrest as a blunt weapon will help ensure justice for the 370,000-odd people who continue to languish in jail without any conviction.