‘Bail is the rule and Jail is an Exception’, this canon of the criminal jurisprudence was laid down by the Supreme Court of India in its landmark judgment of State of Rajasthan V. Balchand alias Baliay, in the year 1978. Justice Vaidyanathapuram Rama Krishna Iyer, who has many avant-grade verdicts to his name, precisely held in the foregoing case that: “The basic rule may perhaps be tersely put as bail, not jail.” To base it, the honorable Justice emphasized the rights guaranteed to an accused under the Constitution of India. Among these rights, the most distinguished one is the right given under Article-21 of the Constitution. Detention of a person affects his right to life and liberty and the main objective of detention is to ensure easy availability of an accused for trial without any inconvenience. Thus, if it is ensured that the accused will be available when required for the trial stage, detaining the person is not compulsory. Therefore, it was held that the courts, while interpreting the provisions of the Code of Criminal Procedure (CrPC) concerned with the arrest of a person, must avoid detention unless it seems indispensable and should grant bail to the accused.
The Supreme Court established the principle that "bail is the rule and incarceration is the exception" in the landmark decision of State of Rajasthan v. Balchand alias Baliya .1978. The ruling was based on the Indian Constitution's several rights, the most fundamental of which is Article 21. Detention of a private person violates his right to life and liberty, which is guaranteed by Article 21 of the Indian Constitution. The most important goal of detention is to ensure smooth procedures by making the accused available for trials with minimal disruption. As a result, if it is frequently ensured that the accused will be available as and when required for the trial, detention is unnecessary. As a result, it was decided that the rules of the Criminal Procedure Code, 1973 (CrPC) concerning the arrest of a private must be read in such a way that detention of an individual must be avoided unless necessary.
WHAT DOES A BAIL DENOTE?
Bail refers to the provisional release of an accused in a criminal case where the court has yet to rule. The term 'bail' refers to a monetary deposit made in order to appear before a judge for release. The word comes from the old French verb "bailer," which means "to bestow" or "to deliver." After delivering a bail bond to the court, an accused is given a ball. The fundamental goal of an arrest is to ensure that the defendant in a criminal case arrives in court to receive justice. However, violating a person's liberty would be unfair and unjust if the person's presence for the court trial could be secured without incarceration. As a result, the accused may be given bail as a conditional release.
Bail dates to 399 BC, when Plato attempted to arrange a bond in order to liberate Socrates. The circuit courts in Britain established a bail system in the Middle Ages. The contemporary concept of bail is largely derived from all of the medieval regulations that control it. According to Kautilya's Arthashastra, avoiding pre-trial custody was optimal, hence the concept of bail existed in ancient India as well. Bail was practised in the form of ‘Muchalaka' and ‘Zamanat' during the Mughal dynasty in the 17th century. The Code of Criminal Procedure, 1973 (hereinafter referred to as the "Act") governs bail at the moment. Although the term bail is not defined directly in the Act, the terms bailable offense and non-bailable offense are specified in Section 2. (a). The provisions of the Act relating to bail are governed by Sections 436–450.
HOW IS A BAIL GRANTED?
When a person is charged with a crime, he has the right to seek bail. A person seeking bail can go to the Session court or the High Court. It is not required that an applicant file a bail application with the sessions court first and then go to the high court if the plea is rejected. A person in detention or on the verge of arrest can go straight to the high court for bail without first going to a session’s court. However, in most cases, the High Court will not hear a direct application and will instead direct the petitioner to go to Sessions Court first and then to the High Court after the Sessions Court has rejected the application.
A person accused of a bailable offense under the I.P.C. can be granted bail under Section 436 of the Code of Criminal Procedure, 1973. In non-bailable offenses, however, Section 437 of the Code of Criminal Procedure, 1973, states that the accused has no right to bail. In the case of non-bailable offenses, the court has the power to grant bail.
It is fair to say that giving bail is, for the most part, a discretionary relief, and courts have not followed any set pattern in granting or denying bail over the years.
TYPES OF BAIL:
The Criminal Procedure Code regulates bail in India, and they are divided into four categories:
BAIL IS A RULE, JAIL IS AN EXCEPTION:
Articles 21 and 22 of the Indian Constitution, as well as the well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because he or she is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. According to Article 21, every procedure that deprives a person of his or her life or liberty must be just, fair, and reasonable. A just, fair, and reasonable method implies that he has a right to free legal services if he is unable to obtain them. It means that you are entitled to a speedy trial. It refers to human confinement, whether for preventative or punitive purposes.”
The Supreme Court granted bail to Republic TV Editor-in-Chief Arnab Goswami in a 2018 case of abatement of suicide on November 11th, 2020. On Goswami's petition, a vacation bench of justices D.Y. Chandrachud and Indira Banerjee upheld a Bombay High Court ruling denying interim bail to Goswami in the Anvay Naik-Kumud Naik suicide case on November 9th. The Supreme Court of India intervened to defend the rule of law as well as Arnab Goswami's fundamental rights. Detention of a person violates Article 21 of the Indian Constitution, which guarantees the right to life and liberty. It is, without a doubt, a significant, ground-breaking, and admirable decision. The rule of law triumphed, and an individual's liberty was properly safeguarded. However, it is clear that such speed and zeal are not present in the normal course of business.
Bail usually takes days, weeks, or months to get. Trials are overcrowding the country's jails, and courts are hesitant to give bail. In truth, bail is seldom granted quickly, and in most cases, the prosecution is given weeks to prepare a response. Once an accused is placed in judicial custody, the prosecution should be granted no more than three days to make a response. Regular bail applications should be decided by the courts within seven days of filing. Unfortunately, it is common to see accused people languishing in jail for months while awaiting the outcome of their bail application. If Courts do not determine bail applications on a priority and in a timely way, the notion of "Bail being the Rule and Jail being an Exception" will be rendered meaningless. Unfortunately, obtaining bail for a (Common Man) is a challenging task. Once an FIR is filed, a person and his supporters are forced to run from pillar to post in search of a suspect's/bail. Bail is described as a sum of money or property lodged with a court. It is a type of security used to release a suspect who has been detained on the condition that they return for their trial and court appearances. The Supreme Court of India reminded a person whose bail request had been denied by the High Court that “bail is the rule and incarceration is the exception” while granting liberty. When giving these rulings or sending people to prison, the court encouraged judges to act compassionately. After investigating the case, the court learned that neither the FIR nor the charge sheet had been filed before the accused was held.
The Supreme Court bench led by Justice Madan B Lokur ruled that "the presumption of innocence" is "a fundamental precept of criminal jurisprudence," and that "courts should take certain pertinent considerations into account before sending an accused to prison."
Detaining an individual and infringing on his right to liberty is deemed punitive and against the principles of natural justice unless there are compelling reasons for custodial interrogation and continued custody at a pre-trial stage. Furthermore, the application of the Reformative theory to the principles of punishment necessitates a balance between two theories, namely deterrence theory and punitive theory, i.e., to reform an accused and keep him away from hardened criminals in prisons that are seen as crime universities. Furthermore, with the advent of the human rights movement, finding a balance between an individual's liberty and the interests of society has become a major challenge. So, unless there are compelling reasons, such as the risk of the accused fleeing justice or the fear of him tampering with evidence or inducing witnesses, the accused's imprisonment is unjustified. As a result, the courts ensure that a person is not imprisoned until an arrest will jeopardize the interests of justice.
POVERTY AND CRIME: CLOSER THAN YOU THINK
To begin, it is regrettable to observe that individuals who are most impacted by the bail system are also the ones who are most persuaded to commit crimes on a systematic level. With more than 450 million people classed as "poor," India accounts for over one-third of the world's destitute.
According to a study published in the Atlantic Review of Economics in 2014 on the impact of various socio-economic factors on crime, there is a positive correlation between poverty and criminal activities, and crime is viewed as a "consumption smoothening strategy" that aids people in their efforts to escape poverty. Several scholars, including D Jacobs and Braithwaite, believe there is a link between property crime and poverty. The rationale is that the benefits of successfully committing a crime outweigh the risks of failure, leading to many people jumping in headlong.
According to a study published in the Atlantic Review of Economics in 2014 on the impact of various socioeconomic factors on crime, there is a positive association between poverty and criminal activity, and crime is considered as a "consumption smoothening method" that helps people escape poverty. D Jacobs and Braithwaite are among the experts who feel there is a link between property crime and poverty. The logic is that the benefits of successfully committing a crime outweigh the risks of failure, thus many people rush in headfirst.
Citizens are more likely to engage in deviant behaviors to indicate to the state that they are at the mercy of the system due to their socio-economic position in society, according to the relative deprivation theory, which states that when people feel deprived, social change is more likely to occur. A similar pattern has been discussed by Jack Levin, a professor of sociology and criminology. Several studies have found that there is a high level of violence where there is a large discrepancy in economic prosperity. According to an analysis of 273 studies, those with poor income, low occupational standing, and low education have greater rates of a criminal offense.
CHALLENGE OF ACCESSIBILITY DURING THE COVID-19
Despite the best efforts of the courts, several bail hearings were postponed during the lockdown period due to a lack of paper verification, malfunctioning video connectivity during e-hearings, lawyer non-appearance, and case withdrawal. While 'very essential matters' were heard by video link, there were no established limits for what constituted an 'urgent matter,' and there was no clarity about how the courts, particularly district courts, functioned. In these uncertain times, it is sad to see that the courts have not given bail proceedings the attention they need.
In various cases, the High Courts have stated that bail applications cannot be handled as an "urgent judicial matter" during a pandemic. Unjust rejection of bail, we feel, is one of the most egregious abuses of an individual's right to personal liberty, especially at this remarkable moment.
Needless to say, the courts have the discretionary power to grant bail in non-bailable offenses, but such discretion should be exercised justly, reasonably, fairly, and objectively, as the prosecution agencies are currently leaving no stone unturned in their efforts to oppose the bail application unnecessarily. It is urgent to balance the rights of an accused and victim so that getting bail on reasonable grounds is no longer a difficult task. It is a well-known fact that if a bail application for a non-bailable offense is rejected by the court on unreasonable grounds, then an accused will not have to live at the mercy of the police, lawyers, judges, or the lengthy procedure.
Action packed second week in may before the summer vacations in SC awaites the most awaited hearing in the recent time. The Supreme Court will hear on May 12 the pleas on the Adani-Hindenburg row in which it had on March 2 asked market regulator SEBI to probe within two months allegations of stock price manipulation by the Adani group and lapses in regulatory disclosure.
The top court had also set up a panel to look at providing protection to Indian investors after a damning report by US short seller Hindenburg wiped out more than USD 140 billion of the Indian conglomerate's market value.
As per the cause list uploaded on the apex court website, a bench comprising Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala is scheduled to hear the pleas.
The hearing assumes significance in the wake of media reports that the six-member committee, headed by former apex court judge Justice A M Sapre, constituted for assessing the existing regulatory framework and making recommendations to strengthen the process, has submitted its report to the top court in a sealed cover.
Recently, market Regulator SEBI moved the apex court seeking a six-month extension to complete its probe into allegations of stock price manipulation by the Adani group and lapses in regulatory disclosure. This extention is opposed by petitioners.
A bench of Justices KM Joseph and BV Nagarathna termed hate speeches a "serious offense capable of affecting the secular fabric of the country". While extending the scope of its 2022 order beyond three states, the Supreme Court on Friday directed all states and Union Territories to register cases against those making hate speeches even if no complaint has been made.
The bench said its October 21, 2022 order shall be made applicable irrespective of religion and warned any delay in registering cases will be treated as contempt of the court.
"Where have we reached in the name of religion? What have we reduced religion to is really tragic," the apex court had then observed and directed Uttar Pradesh, Delhi and Uttarakhand to crack down hard on those making hate speeches, calling them shocking for a country that is religion-neutral.
Holding that the Constitution of India envisages a secular nation, the court had directed Uttar Pradesh, Uttarakhand and Delhi to promptly register criminal cases against the offenders without waiting for a complaint to be filed.
The bench has made it clear that hate speech is a serious crime, and law enforcement agencies must not take the matter lightly to avoid a serious flare of violence due to hate speech.
While speaking at the India Today Conclave, 2023, the CJI said the judiciary has to be protected from outside influences if it has to be independent. Chief Justice of India D Y Chandrachud said that not every system is perfect but this is the best system available for the appointment of judges while defending the Collegium system of judges appointing judges, a major bone of contention between the government and judiciary.
"Not every system is perfect but this is the best system we have developed. But the object was to protect the independence of the judiciary, which is a cardinal value. We have to insulate the judiciary from outside influences if the judiciary has to be independent," Chandrachud said.
The CJI responded to Law Minister Kiren Rijiju voicing displeasure over the Supreme Court Collegium revealing the government's reasons for not approving the names recommended by it for appointment as judges of constitutional courts.
"What is wrong about having a difference in perception? But, I have to deal with such differences with a sense of robust constitutional statesmanship. I do not want to join issues with the law minister, we are bound to have differences of perceptions," the CJI said.
Rijiju has been quite vocal against the Collegium system and once even called it "alien to our Constitution".
The Bar Council of India (BCI) has decided to permit foreign lawyers and law firms to practice in areas such as foreign law, international legal issues and arbitration matters, which it said will be mutually beneficial for lawyers from India and abroad.
With that objective, the apex bar body has notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022.
The objects of the rules notified said the law practice in India will be opened for “foreign lawyers in the field of practice of foreign law; diverse international legal issues in non-litigious matters and in international arbitration cases would go a long way in helping legal profession/domain grow in India to the benefit of lawyers in India too."
The BCI said this opening up will be restricted, well controlled and regulated to ensure it is mutually beneficial for lawyers from India and abroad.
On an experimental basis, the Supreme Court began using artificial intelligence (AI) and natural language processing technology for live recording of its hearings. The live transcription has been launched in the courtroom of Chief Justice of India (CJI) D.Y. Chandrachud.
While announcing the initiative, the Chief Justice said, "We'll see how it works, especially in the constitution bench matters, because then we'll have a permanent record of arguments..." He further added that it helps judges and lawyers, "but it will also help our law colleges. They can analyse how matters are argued...It is a huge resource," said the Chief Justice.
The Chief Justice stressed that it will be done on an experimental basis for a day or two to iron out creases in transcription before becoming a norm. At the beginning of the hearing Tuesday, a five-judge constitution bench headed by the CJI said, "Do you see the screen? We're just trying to explore the possibilities of live transcripts..."
A constitution bench of the Supreme Court is currently considering the issues relating to the Shiv Sena rift. The constitution bench proceedings will be transcribed and given to advocates for vetting prior to uploading on the apex court website.
Chief Justice of India D Y Chandrachud on Monday administered the oath of office to two new judges of the Supreme Court, taking the number of judges in the apex court to its full sanctioned strength of 34.
Justices Rajesh Bindal and Aravind Kumar were administered oath during a brief swearing-in ceremony held in the Supreme Court premises. With the appointment of two judges, the total number of judges in the apex court has risen to 34.
Before being elevated as judges of the apex court, Justice Bindal was the Chief Justice of the Allahabad High Court while Justice Kumar was the Chief Justice of the Gujarat High Court.
In an ongoing tussle, Union Law and Justice Minister Kiren Rijiju, replying to a question on reservations in the judiciary in the Rajya Sabha on Thursday, said that there is no reservation policy in the Indian judiciary presently but reminded the collegium to include those who are not represented adequately in the system.
During Question Hour in the Rajya Sabha, the matter related to whether the government will consider the possibility of introducing a reservation policy in the appointment of judges was raised by DMK leader Tiruchi Siva. "As per the existing policies and provisions, there is no reservation in the Indian judiciary," Rijiju said.
"However, I have reminded all the judges and especially the collegium members, to keep it in mind while recommending the names to include the members from backward communities, women, and other categories which are not represented adequately in the Indian judiciary," the minister said.
TMC member Jawhar Sircar questioned the minister on the points of differences with the judiciary and the 127 proposals for High Court judges lying vacant presently. "When will these proposals be taken up," Sircar asked.
Law Minister Rijiju replied, "There are 210 vacancies in the various High Courts. In terms of the vacancies, I can say that once the names are recommended by the three-member collegium of the High Court, then it proceeds as per the laid down procedures. These 210 names, which he is asking, we have not received any proposal so there is no question of any sharp differences with the judiciary."
Lawyer Lekshmana Chandra Victoria Gowri was being sworn in as an additional judge of the Madras High Court today, the Supreme Court dismissed petitions against her elevation as a judge. The petitioners had cited Ms Gowri's alleged hate speech against Muslims and Christians, arguing it made her unfit to take the oath.
The oath ceremony started while the Supreme Court hearing was still underway. "We are not entertaining the writ petitions. Reasons will follow," a special bench comprising Justices Sanjiv Khanna and Bhushan Ramkrishna Gavai said
The Apex Indian Court today issued notice to the Centre and sought a report within three weeks over an appeal against the ban on a controversial BBC documentary on Prime Minister Narendra Modi and allegations linked to the 2002 Gujarat riots. The Supreme Court asked for the original record of the order to take down the documentary from the public domain.
The Supreme court acted on a petition by veteran journalist N Ram, activist-lawyer Prashant Bhushan, and Trinamool Congress MP Mahua Moitra, asking that the Centre be stopped from censoring the documentary.
The petitions challenge the use of emergency powers to block the documentary and remove links from social media. The Centre never formally publicised the blocking order, said a separate petition by lawyer ML Sharma calling the ban on the two-part documentary "malafide, arbitrary, and unconstitutional".
On January 21, the Centre, using emergency provisions under the Information Technology Rules, 2021, issued directions for blocking multiple YouTube videos and Twitter posts sharing links to the controversial documentary "India: The Modi Question".
In another round of elevation to SC, the Supreme Court Collegium today recommended to the Centre the names of Allahabad High Court Chief Justice Rajesh Bindal and Gujarat High Court Chief Justice Aravind Kumar for elevation as apex court judges.
All the six members of the Collegium, led by Chief Justice of India D Y Chandrachud, were unanimous in recommending the name of Justice Bindal, said the resolution uploaded on the apex court website.
However, Justice K M Joseph had reservations about recommending the name of Justice Kumar, the resolution said.
"The resolution of the Collegium in regard to the appointment of Mr Justice Rajesh Bindal, Chief Justice of the High Court of Judicature at Allahabad, is unanimous. However, regarding the appointment of Mr Justice Aravind Kumar, Chief Justice of the High Court of Gujarat, Justice K M Joseph has expressed his reservations on the ground that his name can be considered later," the resolution said.