Bail should be the rule, Jail the exception

This principle seems to have been reversed in recent times

The judiciary oversees and protects our liberty, and habeas corpus is the most common tool used when there are citizens who have been wrongfully detained, to seek relief in the courts. Alas, application of the rule, "bail is the law, prison an exception" is diminishing.

The original dictum — bail is the rule, imprisonment the exception — has been overturned in our legal system. Vageswari Deswal noted in a paper in the Journal of the Indian Law Institute (Vol. 55, No. 3 (July-September 2013), pp. 361-375) that police officers resort to “burking” on a large scale (“burking” is the quiet, secretive disposal of proof of crimes). If there is no proof that a cognizable offence ever occurred, then crime did not occur. It is analogous to President Donald Trump’s exhortation that Covid19 could be controlled if only the US did less testing. Police have learnt the cynical lesson that burking can make you look good on paper, reality be damned. This is the easiest and quickest way to improve crime control statistics. 

Criminology theory espouses deterrence. Nowadays, police forces in many states have formulated their own, unique form of deterrence: Use and abuse policing powers like the power to take into custody an obviously innocent activist (it is more effective as a deterrent if the person in custody is a woman or a member of the minority community), question him/ her, administer the third degree, buy time by transporting the person to a faraway town, and slap scarcely believable charges like sedition and inciting violence. Control the account that makes it to the mainstream press. Put heavy pressure on the lower judiciary (especially the judge hearing the bail plea) to not allow bail on whatever pretext. Nowadays, this technique has become so commonplace that many judges seem to buckle under the pressure, and follow the dictum "Discretion is the better part of valour". The result: the person rots in jail as an undertrial. This sends a loud and clear signal to all other activists-to-be and chills the atmosphere of dissent. 

Let us look at a very few recent instances where this technique has been used with impunity. 

Nodeep (Navdeep) Kaur, a 24-year-old Dalit girl, demanded that her employer pay pending unpaid wages, only to be fired at and slapped with an extortion charge. She was later arrested from a tent put up by protesting farmers and labourers at the Singhu border and whisked away without letting her family know where she was taken. She was charged with attempted murder under Section 307 of the Indian Penal Code and two other charges. The Punjab and Haryana High Court granted Nodeep Kaur bail after taking suo motu cognizance of her and she walked out of prison after 46 days as this bail was in the third of three cases, primarily because there was no real evidence to support a charge of IPC 307 at the time. She says she was manhandled by male policemen and was sexually abusedwhile in jail. The courts she went to earlier in the district, at two stages, had refused her bail. 

Munawar Faruqui, a stand-up comedian, was picked up for hurting the sentiments of the majority community and has been denied bail three times. The Madhya Pradesh High Court gave him a sermon before returning him to prison. Faruqui was pardoned by the Supreme Court.

On 13 February 2021, Disha Ravi, a 22-year-old climate change activist and a founder of Fridays for Future India, was arrested by the Delhi Police in Bengaluru, and transported immediately to Delhi, before even her parents came to know of it. Whatever you might think about her politics, set it aside for the moment. Let us accept that she is a person who is entitled to the same legal and constitutional rights as you and me. The Delhi Police claim that they arrested her in accordance with the law, and they are right. They enlisted the assistance of the local police and brought her before a magistrate within 24 hours, as required by law. 

The charges: fomenting unrest and sedition. She edited and later deleted an online ‘toolkit’ allegedly intended to be used to plan the farmers’ agitation that was sent to her by Greta Thunberg, an even younger (18-year-old) environmental and climate change activist who has already been nominated thrice for the Nobel Prize, besides being the Time Person of the Year. Consider how the Disha Ravi case unfolded. Disha is whisked away alone from Bengaluru to Delhi on a plane without a lawyer, produced in a court before she could even contact a good lawyer, and then locked up like a ruthless criminal. What if the magistrate made the same decision as Judge Rana and granted her bail? How easy is it for a young person detained in a strange city to find someone to post bail for her? By the way, one of the bail conditions was that she would co-operate with the Delhi police. So she did not leave for Bengaluru to rejoin her mother because the police might call her to Delhi as soon as she reached, which would force her to break bail conditions. 

The Allahabad High Court issued a sobering statement the same week that we celebrated the belated bail orders for these three.

Aparna Purohit, Amazon Prime Video's India content chief, oversaw the production of Tandav, the OTT series starring Saif Ali Khan, which is now facing several FIRs for allegedly insulting Hindu gods.  "Actions of the applicant are against fundamental rights of majority of people, her fundamental right of life and liberty cannot be secured by grant of anticipatory bail," the judge at the High Court said, denying her anticipatory bail. Aparna Purohit was granted bail in the Supreme Court. 

Sedition, which carries a life sentence, seems to be the preferred charge in such cases, as the very prospect of life in prison can cause extreme stress to the person arrested. The police and the political leadership is generally not bothered that in a few weeks, the person may be out on bail, as by then, the objective would have been achieved. Also, not everyone who has been taken into custody and has had bail rejected will have the resources to appeal to the highest court, and even if they did, they would have already spent weeks in prison by then. In the case of Arnesh Kumar v State of Bihar, which was a case involving s.498A of the IPC, the apex court had noted eloquently and succinctly: 

  • Arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers know it so also the police.
  • The manner of the arrest should not be casual and based on a mere allegation made against a person. The arrest should be preceded by initial investigations by the officer to assess the genuineness of the complaint.
  • Proper facts and reasons should be presented before a Magistrate by the officer affecting the arrest within 24 hours of the arrest. The Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.P.C has been satisfied and it is only thereafter that he will authorize the detention of an accused.
  • … the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool for police officers who lack sensitivity or act with oblique motive.

Unfortunately, today, these guidelines for custody and arrest are observed only in the breach, and there is an unholy, unbreakable (or so it seems to those of us who wring their hands) nexus between media and politicians, both being controlled by billionaire industrialists.

In an order dated November 3, 2020, the Supreme Court ruled that default bail under the first proviso of Section 167(2) of the Code of Criminal Procedure is a constitutional right, not just a statutory right (Fakhrey Alam v. State of UP). It ruled that the time limit for completing an investigation and filing a charge sheet u/s.167 cannot be expanded by filing a supplementary charge sheet for offences under the Unlawful Activities Prevention Act (UAPA) In that case, the accused claimed that the so-called supplementary charge sheet was filed after the 180 days statutory time limit, and that he was thus entitled to default bail. 



Rajesh H

Well written. Powerful words.

12 days, 23 hours, 40 minutes, 54 seconds ago
Tanmay Gujarathi
Tanmay Gujarathi

Final Year Law Student at University of Mumbai

A law aspirant who is fond of blogging and public speaking. Likes to learn new things and unlearn outdated stuff


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