The contours of the right to receive bail | Guest Post by Rasveen K. Kapoor

(This is a guest post by Rasveen K. Kapoor. Rasveen is a student at Indore Institute of Law).  

Arnab Goswami || Siddique Kapan

“A man of courage never needs weapons, but he may need Bail.” 

– Lewis Mumford, American historian

It is the sacrosanct obligation of all concerned with the justice dispensation system to ensure that the administration of criminal justice remains effective and meaningful. Literally, the expression 'bail' denotes a security for appearance of a prisoner for his release. Bail is a grant of conditional liberty to an accused who assures or on whose behalf assurance is given that he would be present at the trial. It is imperative to note that the very idea of bail emerges from an assumption, of the accusatorial framework, i.e.  innocent till proven guilty.

As recognized by the English jurist, William Blackstone, “it is better that ten guilty persons escape, than that one innocent suffer.”  An incalculable wrong is done to an innocent person who spends even a single day in prison. From the date of recording of an FIR till consummation of the trial process and the case decision, the law contains different arrangements to release an accused on bail. Through multiple decisions, the Supreme Court of India has held that bail is a privilege and is significant in a democratic republic, until he is demonstrated liable through a fair trial process.

A Mathura court on November 13^th’ 2020, dismissed the bail plea of three persons, booked on charges of sedition and terrorism after their arrest in Mathura along with a Kerala journalist namely, Siddique Kappan – who was on his way to Hathras village to meet the family of a Dalit woman who died after being brutally gang raped.

This denial of bail must be examined in context with the speed with which Arnab Goswami received bail, after just a single hearing in the Supreme Court. The speedy hearing and the grant of bail to Arnab Goswami has rekindled the moot question regarding the selective treatment of the high and the mighty - “Whether the privilege to fundamental rights is only a prerogative of the riches”?

When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and must be released on bail except when under extremely rare circumstances it is not possible to do so.

Personal liberty is recognised significantly in the constitutional framework under Article 21. While considering bail applications of the accused, it is important that the courts balance considerations of personal liberty and the interests of the general public, thereby paving a way for judicial discretion in matters of bail.

 It is the solemn duty of the court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital[1] has stated certain points to be considered before granting bail, namely:

1.  The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
2.  Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
3. Prima facie satisfaction of the Court in support of the charge.

The Supreme Court had time and again stated that bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors[2] has mentioned some relevant grounds that play a vital role in deciding the bail applications being, the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It has been regarded by the Hon’ble Supreme Court in the case Babu Singh and Ors. V. State of U.P. [3] that, deprivation of personal liberty by refusal of bail applications blurs the great trust exercisable as on the part of the judiciary as an institution, not casually but judicially, with lively concern for the cost to the individual and community. Personal liberty of an accused or convict is fundamental, and shouldn’t be subjected to suffering lawful eclipse in terms of the procedure established by law. 

In all these cases, the common condition attached is that the person released on bail will be brought before the court on demand. Other conditions may be imposed as may be deemed appropriate. It may be stated in passing that in the event of delivering custody to the state by way of refusal of bail to the accused or his surety the court may set out other conditions for the benefit and enjoyment of liberty by the accused.

Legislative prescriptions governing inmates in prison may be said to be serving this end. These regulations have to be in conformity with the themes of such human dignity as are now being expounded by the court as a part of human rights jurisprudence in general and personal liberty in particular.[4]

Passionate pleas for personal liberty are often being made while seeking release of an accused person in pre-trial cases. This approach is expressive of the conscious assertion to protect the individual rights. The pre-emptive rule of “Bail Not Jail” as regarded in Khemlo Sakharam Sawant v. State of Maharashtra[5] , vis-a-vis Article 21 should not be ignored. Though judicial discretion in matters of granting bail is imperative, but selective treatment by judiciary in matters of personal liberty dwindles the very faith of an individual in the credibility of judiciary as an institution.

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[1] State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258.

[2] Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR 2001 SC 1444.

[3] Babu Singh and Ors. V. State of U.P., (1978) AIR 527, 1978 SCR (2) 777.

[4]  D.C. Pandey, "Criminal Law", XVI ASIL 452 et. seq. (1980).

[5] Khemlo Sakharam Sawant v. State of Maharashtra 2002 (1) BOM C.R. 689.

The denial of bail to Safoora Zargar – Is our criminal justice system no longer humane?

“The significance and sweep of Art. 21 make the deprivation of liberty a matter of grave concern, and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19.... Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi-focal interests of justice - to the individual involved and society affected……..Public justice is central to the whole scheme of bail law”.

-         Justice V.R. Krishna Iyer, in Babu Singh v State of UP, AIR 1978 SC 527

On 4^th June, the Patiala House Court refused to grant bail to Safoora Zargar – who is in the 21^st week of her pregnancy. Safoora was booked under the Unlawful Activities (Prevention) Act, 1967 (the UAPA) for allegedly ‘instigating’ the East Delhi riots, which took place in the last week of February. The charge against Safoora was framed for committing the offence mentioned in sub-section (iii) of Section 2(o) of the UAPA, which deals with the commission of an ‘unlawful activity’ that causes or is intended to cause ‘disaffection’ against India. Now, under clause (5) of Section 43D of the UAPA, for offences punishable under Chapter IV and Chapter VI of the statute, bail cannot be granted when the Court is of the view that a prima facie case has been made out by the prosecution.

Chapter IV deals with the commission of a terrorist act, while Chapter VI deals with offences relating to membership of a terrorist organization. The statute forbids the Court from granting bail only when a prima facie case is made out for offences that fall under Chapter IV and Chapter VI. This does not apply for other offences, such as the offence of causing (or attempting to cause) disaffection against India, which Safoora has been accused of. For such other offences, the existing jurisprudence on bail shall be applicable. The bail order fails to note this distinction, and only examines whether there is prima facie merit in the charges made against Safoora.

Existence of a prima facie case against the accused is only one among the many factors that the Court is mandated to take into consideration, while deciding whether bail is to be granted. As the Supreme Court has noted in decisions such as State of Maharashtra v. Sitaram Popat and Prasantha Kumar v. Ashis Chatterjee, there are multiple other factors that the Court has to take into account while considering a bail application. Some of these factors are  – (i) the nature of accusations and the severity of punishment in case of conviction; (ii) reasonable apprehension of tampering of evidence/ influencing of witnesses; (iii) reasonable apprehension of threat to the complainant; and (iv) danger of the accused absconding. The Court failed to consider any of these factors, and only determined whether there is prima facie merit in the charges framed.

Let us apply some of the factors mentioned above to Safoora’s case. The charge framed against Safoora under the UAPA is for causing disaffection against India, which is a charge framed by the prosecution in most instances where there are fervent protests against the establishment. As per the bail order, the overt act through which ‘disaffection against India’ is caused is the attempt to block a road. Now, this is an overbroad interpretation of the ambit of the term ‘disaffection’, especially in a scenario where there is no concrete material to support the claim that Safoora incited violence. In any event, Safoora is not accused of a heinous crime such as murder, or attempt to commit murder. 

As the police already claims to have documentary evidence (such as Whatsapp chats) and video footage of the alleged actions of Safoora, there is no possibility of any large-scale destruction of evidence or influencing of witnesses. There also exists no reasonable apprehension of Safoora absconding. Even without considering the aspect of pregnancy, there were other grounds on which the Court could have granted bail. The Court does not even refer to these grounds which it ought to have considered under well-established bail jurisprudence. Granting of bail in any case would not have affected the veracity's of the charges framed by the prosecution, which shall be determined only at the trial stage. 

Let us now come to the Court’s approach to the defence counsel’s claim that bail should be granted on humanitarian grounds, as Safoora was in the 21^st week of her pregnancy. Safoora was also reported to be suffering from poly cystic ovarian disorder, and had a reported history of urinary tract infection. The defence counsel also highlighted that all the three jails in Delhi have reported positive cases of Covid-19, and her situation becomes all the more vulnerable in this pandemic. The Court fails to even address these contentions in its order, and attempts to salvage the situation by ‘requesting’ the jail superintendent to provide medical aid and assistance to Safoora. However, even if medical aid were to be provided from time to time – that is not in any way a justification for denying bail to a pregnant woman.

This is because pregnancy is a process that is physically and psychologically draining, where access to a clean, hygienic and conducive environment is crucial. A jail cell obviously cannot provide a conducive environment. This, along with the lack of hygiene, may increase the chances of catching Covid-19, as well as other infections - which may lead to complications in the pregnancy. The inability to ensure effective social distancing in jails only exacerbates the problem – and increases the risk of contracting the coronavirus. The Court failed to take note of these health risks which a pregnant woman may have to face in jail. 

This failure to secure Safoora’s personal liberty and right to health under Article 21 is nothing short of callous and inhumane.  As Justice Krishna Iyer held in Babu Singh’s case, public justice is central to the whole scheme of bail law, as depriving bail may amount to an unreasonable deprivation of ‘life and personal liberty’ under Article 21. One does not need to be a lawyer or a law student to figure that keeping a pregnant woman in jail poses a risk to her life and her health. If a pregnant woman who is subjected to vague charges of ‘blocking a road’ cannot be granted bail, then we must ask ourselves the question – Is our criminal justice system no longer humane? Let us all be the judge.

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Update: On 24th June, Safoora Zargar was finally granted bail by the Delhi HC. Solicitor General Tushar Metha, who was representing the Delhi Police before the HC, stated that he shall not be opposing the bail plea on humanitarian grounds. 

As we debate larger questions surrounding the UAPA, Safoora Zargar's case serves as an epitome of the manner in which this law denigrates civil liberties, and suppresses all forms of dissent against the State.