Zubair case shows it’s high time for a law on bail

In July, the Supreme Court of India in Satinder Kumar Antil vs CBI (“Antil”) reiterated the principle that bail is the rule and jail is an exception. The bench of Justices Sanjay Kaul and M.M. Sundresh also suggested that the government introduce a comprehensive law on bail following the principles and guidelines laid down in the judgment.

Justice Sundresh quoted John Emerich Edward Dalberg to state: “Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization.”

Article 21 of the Constitution recognises personal liberty as the most precious right of an individual. And when someone is jailed without following the procedure established by law, the right to liberty is violated. Article 21 falls under the section of Fundamental Rights and its interpretation is wide enough to include the right to a fair and speedy trial and the right against illegal detention.

Arrest is a draconian measure in any civilised society and must be exercised as the last resort, balanced against the claims made against the accused. “In a democracy, there can never be an impression that it is a police state, as both conceptually are opposite to each other,” the top court said in its recent judgment. Union Law Minister Kiran Rijiju said in a recent speech that there are more than 3.5 lakh undertrial prisoners in India, most of them poor and illiterate. The National Crime Records Bureau (NCRB) data for 2020 finds that 68 per cent of undertrial prisoners are illiterate or school dropouts, 20 per cent are Muslims and 73 per cent Dalits, tribals or OBCs.

Delay in trials

The chief reason why prisoners languish in jails for long periods is the delay in conducting trials. In Chhattisgarh, 121 tribals were recently acquitted after they had spent five years in jail for their alleged links to a Maoist attack in which 25 CRPF security personnel were killed in 2017. They had been charged under the stringent Unlawful Activities Prevention Act (UAPA), which rendered the granting of bail impossible.

Incarcerating citizens for long periods without conducting trials and simultaneously refusing them the benefit of bail is to inflict a thousand cuts in the heart of the Constitution. In the Antil judgment, the apex court noted that delays in trial, young age of the accused, sickness, or the applicant being a woman must be considered as relevant factors for the grant of bail in all cases, whether they fall under UAPA, the sedition law, the Prevention of Money Laundering Act, or any other.

A candle rally in 2017 in memory of the death of CRPF jawans in Chhattisgarh’s Sukma district. 121 tribals were recently acquitted after they had spent five years in jail for their alleged links to the Maoist attack in which these security personnel were killed. | Photo Credit: The Hindu Photo Archives

Every accused is innocent until the prosecution proves the contrary in a court of law. Granting bail is based on this presumption of innocence, as it sets the accused at liberty to look into the case against him and establish innocence. In Sanjay Chandra vs CBI, the Supreme Court stated that the only objective of detention or arrest is to secure the presence of the accused in court whenever the case is heard. The objective of a pre-trial arrest is not punitive or preventative. Keeping accused persons in jail for extended periods before their trial thus goes against all constitutional values and rules.

When a crime is alleged, the police investigates and brings the offender before the court. The Criminal Procedure Code (CrPC) 1973 grants police officers the power to arrest any person in a non-bailable offence without a warrant when certain conditions under Section 41 of the CrPC are fulfilled, and the police officer has to compulsorily record in writing his reasons for the arrest. Further, in all cases where arrest is not required, Section 41A lays down the procedure for appearance before the police, who are required to issue a notice to the person against whom a reasonable complaint has been made, or credible information received, or reasonable suspicion exists that he has committed a cognisable offence. Moreover, the Supreme Court judgment of 2014 in Arnesh Kumar vs State of Bihar lays down the guidelines for the police while making an arrest and for strict compliance with Sections 41, 41A, and other relevant CrPC provisions.

When to arrest

It is not enough for the police to be satisfied that the accused has committed a crime to mandate an arrest; arrests are allowed only to prevent a suspect from committing a further offence or for proper investigations to proceed,or to prevent the accused from tampering with the evidence or causing it to disappear. These conclusions are to be made on the basis of the facts of the case only.

In cases where punishment is less than seven years, no arrest should be made. This is what the top court said in Arnesh Kumar. Eight years later, in 2022, the top court in Antil’s judgment again advised trial courts and High Courts to come down heavily on police officers who do not follow the guidelines while arresting a person and made them liable for departmental enquiry and contempt of court.

A view of the Supreme Court of India. In 2022, the top court advised trial courts and High Courts to come down heavily on police officers who do not follow the guidelines while arresting a person and made them liable for departmental enquiry and contempt of court. | Photo Credit: SUSHIL KUMAR VERMA

After an arrest, the accused can be kept in police custody for up to 24 hours only, after which he must be produced before the nearest magistrate who shall either grant bail or further custody. If the accused cooperates with the authorities and if the police have not complied with the procedures laid down in Sections 41 and 41A of the CrPC, then the magistrates are duty-bound to release the accused on bail. Yet, magistrates often give mechanical orders while granting police or judicial custody and fail to give reasons for their orders. This must lead to enquiry against them by the respective High Courts, the Supreme Court said in Antil. The magistrate and trial courts are “guardian angels of liberty” and it is their duty to preserve and safeguard constitutional values and the liberty of citizens.

The criminal justice system is not meant to become a punishment for either the accused or the victim, both of whom have the fundamental right to justice. In some cases, it is necessary and reasonable to keep certain accused behind bars, but it cannot be a norm. The Antil judgment stated that the harsh provisions that make bail almost impossible in certain cases must not be invoked blindly; the bail application in each such case must be looked into carefully in the light of the gravity of the offence and the exonerating circumstances.

Yet, despite the Supreme Court guidelines clearly laid down in the Antil and the Arnesh Kumar cases, the police continue to flout them regularly. When Mohammad Zubair, the co-founder of fact-checking website Alt News, was arrested by the Delhi Police for a tweet posted four years ago, the police cited Section 153A (promoting enmity between different groups on grounds of religion and for acts prejudicial to maintenance of harmony) and 295A (deliberate and malicious act intended to outrage religious feelings) of the Indian Penal Code. Both these offences are punishable with a jail term less than seven years, yet Zubair was arrested and bail denied by the trial court, in a clear contravention of the Arnesh Kumar judgment. It took a Supreme Court intervention on July 20 to grant Zubair bail in all six cases filed against him across UP.

In contrast, in another case with similar charges, Rohit Ranjan, a television anchor, was granted bail as well as protection from arrest almost immediately. Similarly, stand-up comedian Munawar Faruqi was arrested by the Madhya Pradesh Police in 2021 for allegedly outraging religious feelings and an FIR was registered under Sections 295A, 298, 269, 188 and 34 of IPC. The prescribed punishment for all these offences is less than seven years, yet the comedian was arrested.

In June, the Bombay High Court pulled up the Maharashtra government for keeping a 21-year-old in prison for alleged defamatory posts against NCP supremo Sharad Pawar. He was charged under sections that carry less than seven years’ punishment yet was kept behind bars for a month. So, it is clear that there is no uniform application of the guidelines of the apex court, but a prejudicial application.

It has, therefore, become necessary to have a law on bail along the lines of the principles laid down by the top court in its judgment and along the lines of the United Kingdom Bail Act (which was also referred by the Supreme Court) in order to ensure fairness, consistency and non-biased adjudication of bail applications.

Fairness and non-biased adjudication fulfil the requirement of Article 14 of the Constitution that no person shall be discriminated on the basis of religion, caste, community, and so on. The efforts of the court to recognise the problems with the criminal justice system are to be commended, and one hopes these guidelines will be implemented by the executive. Lastly, in the words of Justice D.Y. Chandrachud, “deprivation of liberty for a single day is a day too many”. The judgments on bail applications must reflect this idea.

Chaitanya Singh is an advocate based in Delhi.