Fortify the justice system to ensure bail is the norm
Making a new law much like a Bail Act is desirable, but there is an immediate need for effective regulation on fixing accountability. No new law for bail will be effective if our system has little inclination to fix accountability
The Supreme Court (SC)’s intervention, in granting protection to Mohammed Zubair and Nupur Sharma, does not make for an understanding of the criminal justice administration in India, for not many citizens are fortunate enough to have effective legal representation and the benefit of being heard by libertarian judges in the jurisdiction of SC.
The apex court said Zubair was trapped in a “vicious cycle” of the criminal justice process, where the process became the punishment. On an earlier occasion too, the Chief Justice of India, NV Ramana, acknowledged that the process of the criminal justice system is punishment in India. A few days before that, while highlighting the problems in our justice system, another bench of SC desired that the Government of India consider introducing a separate law, much like a “Bail Act” to streamline granting bail. Criminal courts are the guardians of liberty, which must be preserved, protected, and enforced.
This is not the first time our court system has expressed such sentiments. In 1979, SC stated that it was high time that the public conscience was awakened and the government and the judiciary realise that, in dark prison cells, several men and women are waiting, often in vain, for justice — a commodity tragically beyond their reach and grasp.
On many occasions since then, SC has made observations about granting bail to undertrials and underlined the abuse of laws affecting personal liberty. The courts and other institutions have recorded that the rate of conviction in criminal cases in India is abysmally low. However, the system has functioned in its own way, compelling the court to repeatedly highlight the issue. The court’s reminder for fresh legislation in the nature of the Bail Act is in the same vein.
Will the new legislation, if passed, be the remedy to make things better?
Laws do exist in this field, but the criminal justice system needs both improvement and accountability. The courts have hardly held the police and prosecution accountable for their cavalier and whimsical attitudes, which often lead to depriving individuals of their personal liberty. What’s worse is that, despite a few exceptions, institutions and people in positions of power do not encourage any serious discussion on accountability. If personal liberty is disregarded despite the existing laws, the promulgation of a new law will simply not be effective.
India has a history of making substantive criminal laws. The Preventive Detention Act, the Maintenance of Internal Security Act (MISA), the Terrorist and Disruptive Activities (Prevention) Act (TADA), and the Prevention of Terrorism Act (POTA) were enacted and later repealed after they were misused. Now we have the Unlawful Activities Prevention Act (UAPA) through amendments to the existing code. UAPA today is facing the same resistance that led to the earlier laws being repealed.
Further, India’s judicial system works within a peculiar paradox. On the one hand, a criminal complaint can move extremely fast, so much so that in 24 hours, all action is taken. On the other hand, other complaints see the registration of first information reports (FIRs) drag on for years despite the law and SC mandating that the registration of FIRs be immediate. Even if FIRs are registered simultaneously, in one case the charge sheet may be filed quickly, while the other take years despite existing regulations which call for adherence to time limits.
Further, there is a provision in the Code of Criminal Procedure for default bail in case the prosecution fails to submit a charge sheet in the prescribed period. The courts have clarified that default bail is an indefeasible right, which cannot be allowed to be thwarted by the prosecution. However, it has become a regular practice for the prosecution to frustrate this right by filing half charge sheets, reserving their right to file supplementary charge sheets, while in many other cases, there is a series of supplementary charge sheets for a single case. Further, in some cases, the prosecution does not file even a partial charge sheet, leading to the accused getting the benefit of default bail.
It is alarming that officials who default in filing these charge sheets — thereby restricting the personal liberty of citizens — have unwritten immunity in our criminal justice system. Each step has serious consequences with regard to personal liberty. On this, the courts have often not been sensitive or serious in ensuring that the spirit of statutory provisions is upheld while taking these steps. This has led to the prosecution acting arbitrarily.
This will continue because the culture of the criminal justice administration is very subjective, loosely implemented, and dependent on varied factors. Making a new law for regulating bail is desirable, but there is an immediate need for effective regulation on fixing accountability.
No new law for bail will be effective if our system has little inclination to fix accountability.
MR Shamshad is an advocate, Supreme Court of India
The views expressed are personal
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