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Jail vs bail: Where does power to arrest sit with right to freedom?
The Supreme Court’s 1977 dictum that bail is the rule and jail the exception is one of the most cliched statements heard in a court room. However, what’s ironic is that this adage is observed more in the breach than in compliance by subordinate courts even as the Supreme Court has expanded the ambit of the term “liberty”, as enshrined in Article 21 of the Constitution.
The Supreme Court’s 1977 dictum that bail is the rule and jail the exception is one of the most cliched statements heard in a court room. However, what’s ironic is that this adage is observed more in the breach than in compliance by subordinate courts even as the Supreme Court has expanded the ambit of the term “liberty”, as enshrined in Article 21 of the Constitution.
Many Supreme Court judgments have read new rights into Article 21, including right to dignity, right to travel abroad, right to livelihood, right to food, right to speedy trial, right to clean environment, right to legal aid, and more recently, right to privacy and bodily autonomy. Unfortunately, in this time, courts in India have transitioned from a liberal bail jurisprudence to judicial conservatism, making the grant of bail the exception and jail the rule.
Thus, even as the apex court evolved new rights and read them into the Constitution to guarantee a more dignified life to the citizens, the most fundamental right of them all, freedom, became the most difficult to secure when curtailed by the mighty State, using its policing power.
The reluctance of courts in granting bail has come in handy for investigating agencies that push to keep people in jail for the maximum period of time possible, while financial, social, and legal hurdles shackle the access of the marginalised to bail.
On Monday, a Supreme Court bench of justices Sanjay Kishan Kaul and MM Sundresh, duly acknowledged that judicial conservatism has added to the investigating agencies’ misadventures of weaponising of process as punishment.
Delivering a significant judgment on issues surrounding arrest and grant of bail, the top court recommended that the Union government frame a new law to facilitate the grant of bail and usher in objectivity in the criminal justice system to ward off unnecessary arrests, especially in cases where the maximum punishment under the alleged offence is up to seven years in jail. The bench also issued a slew of directions for investigating agencies and the subordinate courts on arrests and disposal of bail applications, while seeking compliance reports within four months.
The Monday judgment has once again highlighted the need to correct bail jurisprudence in the country at a time when various arrests and long pendency of bail applications have raised serious questions over the objectivity and efficacy of the judicial approach to such matters. The judgment borrowed from the golden principles developed gradually, and regretted how the criminal courts may have turned the consideration of a bail plea into a punitive process in the wake of abysmal conviction rates.
Power and need to make arrests
Several Supreme Court judgments have stressed on the distinction between the power to make arrests and the need to do so. The court has been emphatic that while an investigating agency may have the authority to arrest someone, it cannot be done routinely and without a sufficient cause. For, an arrest marks the end of an individual’s liberty and therefore, such action must be procedurally and substantially compliant with the laws of the land.
In Joginder Kumar Vs State (1994), the top court considered the dynamics of misuse of police power of arrest and opined: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another...No. arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person his liberty is a serious matter.”
Again, in DK Basu Vs State of West Bengal (1996), the Supreme Court emphasised that the power of arrest, interrogation and detention must be guided by constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen. In this judgment, the court laid down elaborate guidelines to be followed by the police officials at the time of making arrests. Some of these included maintaining logs of the officers making arrests, informing the person detained about his right to have legal aid and informing his/her family members.
Section 41 of the Criminal Procedure Code (CrPC) confers powers on any police officer to arrest a person without any order or a warrant of arrest from a magistrate. Section 41A authorises a police officer to call upon a suspect for questioning if he/she feels the arrest is not required at that stage.
Section 46 provides the method and manner of arrest even as it does not mention any formal method of arresting a person. Under Section 49, the police is guided not to use more restraint than is necessary to prevent the escape of the accused. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform those arrested that they are entitled to be released on bail and may arrange for sureties in the event of arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a magistrate without unnecessary delay and Section 57 makes it incumbent to produce the person arrested before a magistrate within 24 hours.
The 2014 landmark judgment of the Supreme Court in Arnesh Kumar Vs State of Bihar elucidated the purposive interpretation of Section 41 CrPC (which empowers the police to arrest people without warrants), holding that an arrest for offences carrying maxium punishment up to seven years in jail can be made only after satisfying the twin condition – that there is a reason to believe or suspect that the accused has committed an offense, and there is a necessity for an arrest.
“In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose will it serve? What object will it achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised,” said the top court, adding the law mandates the police officer to record the reasons behind making arrests.
The Arnesh Kumar judgment further said that a magistrate is duty-bound to release an accused if the investigating agency fails to show compliance with the requirements under Section 41 of the CrPC, besides ensuring all other constitutional rights of the person arrested. The court directed states and Union territories to hand over a checklist to the police officials so as to ascertain they satisfy the legal requirements before arresting a person.
The Supreme Court judgment, delivered on Monday, borrowed from the Arnesh Kumar judgment while issuing the guidelines that require police officers to maintain written records before arresting the accused in cases where the offence is punishable with imprisonment for a term less than seven years and issue proper notice before a suspect is called for questioning; ensure automatic grant of bail in cases where the accused was not arrested during investigation; adopt of a liberal view in cases pertaining to women and the infirm; and mandate the disposal of bail applications within two weeks and pre-arrest bail applications within six weeks.
Bail is the rule, jail the exception
Justice Krishna Iyer, writing for the bench in State of Rajasthan Vs Balchand alias Baliay (1977) held that “the basic rule is bail, not jail.” The two-page judgment said unequivocally that bail should be granted in all cases except where there is a flight risk, or there is the possibility that the accused could thwart the course of justice, repeat the offence or intimidate witnesses.
Justice Iyer, who emerged a strong proponent of liberty as a judge of the apex court, emphasised this again in Gudikanti Narasimhulu Vs State (1978). “The issue (of bail) is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’. The last four words of Article 21 are the life of that human right.”
The purpose of granting bail was succinctly explained by the Supreme Court in Gurbaksh Singh Sibbia Vs State of Punjab (1980) when it underscored that bail is not to be rejected as a punitive measure. “...that the object of bail is to secure the attendance of the accused at the trial...that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment,” said the court.
In 1994, in the Supreme Court Legal Aid Committee Representing Undertrial Prisoners Vs Union of India, the apex court held that if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. The court, through this judgment, issued guidelines on releasing undertrials on bail after they serve half the maximum punishment prescribed under the alleged offences for category of cases where the maximum quantum is up to ten years’ imprisonment.
The Supreme Court, in Sanjay Chandra Vs CBI (2012), pointed out that a mere apprehension regarding tampering with witnesses cannot be sufficient to keep an undertrial behind bars. “In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances,” said the court. One must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content, added the court, cautioning a bail cannot be rejected for the purpose of giving an accused “a taste of imprisonment as a lesson”.
In Nikesh Tarachand Shah Vs Union of India (2018), the Supreme Court quashed a provision in the Prevention of Money Laundering Act, 2002, holding that the impugned provision imposed extremely harsh and discriminatory conditions for release on bail and violated Article 21. “Article 21 is the Ark of the Covenant so far as the Fundamental Rights chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons,” it held.
Legal principles are practised largely in breach
AltNews co-founder and fact-checker Mohammed Zubair was recently arrested in three separate but similar cases relating to his old tweets, by invoking charges of promoting enmity and communal hatred. He was remanded to judicial custody by a Delhi court on July 2 following rejection of his bail plea even though the charges can fetch a maximum punishment of less than seven years in jail. His arrests in the other two cases by the Uttar Pradesh police are also under similar charges where the maximum punishment cannot exceed seven years but he awaits his release on bail.
84-year-old tribal rights activist Stan Swamy died in judicial custody in Mumbai on July 5 last year in the Bhima-Koregaon Maoist links case even as his bail application remained pending before the high court since April 2021 while his health deteriorated. NIA opposed his bail contending there did not exist a “conclusive proof” of his medical ailments.
Several old and infirm co-accused in the Bhima-Koregaon case, including Varavara Rao, are currently fighting for regular bail in view of their medical conditions and poor amenities at the Mumbai jail where they have been lodged.
In Maharashtra, cartoonist Aseem Trivedi Trivedi was arrested in 2012 for depicting the national emblem and Parliament in a “bad light” in his cartoons. He was charged with sedition and spent four days in jail before the Bombay high court granted him reprieve. Also in 2012, two girls were arrested in Maharashtra over their Facebook post questioning the shutdown in Mumbai for Shiv Sena chief Bal Thackeray’s funeral. They were released after furnishing bail bonds.
BJP youth wing activist Priyanka Sharma was arrested in may 2019 for posting a morphed picture of West Bengal Chief Minister Mamata Banerjee on Facebook. The Supreme Court granted her bail after she spent four days in judicial custody.
Standup comic Munawar Faruqi, arrested in January 2021 for allegedly hurting religious sentiments, was imprisoned for 35 days before the Supreme Court stepped in.
On May 15, 2022, Marathi actor Ketaki Chitale was arrested for sharing an objectionable post about NCP chief Sharad Pawar. She remained behind bars for more than a month before securing her release on bail from a sessions court on June 22.
In Tasleema Vs NCT of Delhi (2009), a 14-year-old boy was picked up by the Gujarat police from Delhi and taken to Gujarat without following the due procedure. The Delhi high court directed the Gujarat government to cough up a compensation of ₹2.7 lakh to the minor and his mother for the wrongful detention. In Sandeep Kumar Vs NCT Of Delhi (2019), the Uttar Pradesh Police illegally detained a 23-year-old man for marrying a Muslim girl, who was also a major. The Delhi high court declared the detention illegal, awarded a compensation of ₹50,000 each to the couple, and asked the UP’s director general of police to apologise to the couple.
Not only in the cases where the punishment is less than seven years in jail but also in cases involving more serious offences, the Supreme Cout has maintained that its power to grant bail is not circumscribed.
In February 2021, the top court ruled that an accused is entitled to bail even under stringent anti-terror and narcotic laws when there is little possibility of the trial being completed early. The court granted bail to KA Najeeb, facing trial in Kerala under the Unlawful Activities (Prevention) Act for allegedly chopping off a professor’s hand. “Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail,” held the court.
In P Chidambaram Vs Directorate of Enforcement (2020), the top court clarified that economic offences cannot be categorised into one group and denied bail on that basis. “Even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so,” declared the court.
Where additional legislative restrictions obligate accused to first show that they are not guilty of the offence before bail can even be considered, the Supreme Court held in its Monday judgment that delay in completion of trial would be a relevant factor to grant bail.
The Delhi high court has in several recent instances followed the principles laid down by the Supreme Court in the grant of bail. In October 2021, it granted bail to a man lodged in jail for the last 12 years for his alleged role in the 2008 Delhi serial blasts. “Courts should not play coroner and attend to legal or constitutional rights only after they are “dead”. Instead, we must play doctor, and save such rights from demise before they are extinguished. Courts should pro-actively step-in to protect such rights from being stifled and buried,” it noted.
In January this year, the Delhi high court sentenced a sub-inspector (SI) of the Delhi police to one day imprisonment for not giving a notice to a man under Section 41A of the CrPC before arresting him. The HC said that “arrest and incarceration destroys a person and collaterally affects many other innocent relatives”. Again, in March this year, the Delhi HC granted bail to a man incarcerated for eight years under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, pointing out there is an egregious violation of an accused’s right to personal liberty and right to speedy trial due to inordinate delay.
It is clear that the basic jurisprudence relating to bail has remained the same (at least in constitutional courts) inasmuch as the grant of bail is the rule and refusal is the exception, so as to ensure that the accused has the opportunity of securing fair trial. But the dangerous mix of arbitrary use of power to arrest by the investigating agencies, followed by uncertainties of bail proceedings before the courts of law afflicted with judicial conservatism have made a declared judicial principle an elusive target.
The entire judicial system in India is based on presumption of innocence but an adversarial approach by the stakeholders has led to a divorce between the cherished constitutional and statutory goals, and the criminal justice system.
The Supreme Court’s judgment on Monday is a welcome step in setting the bail jurisprudence right again but the redressal may eventually lie in changing the mindset of the investigating agencies and the judges of the trial courts.
