In picture: Prashant Tewari Editor-in-Chief of Opinion Express with then former Law Minister of India DR Hansraj Bharadwaj
HR Bhardwaj's tenure as the Law Minister holds a significant place in the annals of India's legal and political history while serving as the Law Minister from the early 1990s to 2009, Bhardwaj's vision and determination to reform and update the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) were noteworthy. However, his pursuit of these reforms was hampered by the lack of political support within the Congress party during that period.
The Indian Penal Code, enacted in 1860 during the British colonial era, and the Code of Criminal Procedure, formulated in 1973, are two of the cornerstones of India's criminal justice system. Over time, societal dynamics, technological advancements, and legal philosophy had undergone substantial changes. Bhardwaj recognized the imperative need to modernize these codes to reflect the contemporary challenges and values of Indian society.
Bhardwaj's commitment to reform stemmed from his understanding that the IPC and CrPC needed to evolve to address the complexities of modern crime, societal norms, and the principles of justice. His vision was to ensure that these laws remained relevant, effective, and equitable for all citizens. He aimed to strike a balance between protecting individual rights and ensuring the swift and efficient dispensation of justice.
During his tenure, Bhardwaj initiated a series of discussions, consultations, and debates to bring together legal experts, scholars, practitioners, and stakeholders to identify areas of reform within the IPC and CrPC. His approach was inclusive, seeking input from diverse perspectives to ensure that any amendments would withstand legal scrutiny and public expectations.
His visionary efforts to set up the timelines for the courts to decide on cases, and women-centric laws, promote Mediation and Arbitration to reduce burden on the active courts, limit the scope of appeals in the constitutional courts, set up mechanisms to evaluate judge's performance, declaration of assets by the judges mandatory to bring transparency in the courts, enhancement of salary and wages to the judges, selection of judges in the high and supreme courts through a consultation process between state government, state high court, supreme court collegium and finally the law ministry at GOI consent to be forwarded to President of India had established the best process to segregate judiciary from the government influence for maintaining the independence of the institution. Bhardwaj faced challenges within his own party, the Indian National Congress. The lack of political support can be attributed to various factors, including the non-majority government, the complex nature of legal reforms, differing ideological priorities within the party, and the broader political landscape of the time.
In the early 2000s, the Congress party was navigating a delicate balance between various factions and interest groups. The focus on economic reforms, social welfare policies, and other pressing matters often overshadowed the urgency of legal reforms. The party's leadership might have perceived IPC and CrPC reforms as less politically rewarding compared to other issues on their agenda.
Moreover, the Indian legal system is deeply entrenched in tradition, and any attempt to overhaul or amend such foundational laws can be met with resistance, skepticism, and concerns about unintended consequences. Bhardwaj's proposals for IPC and CrPC reforms might have faced opposition from those who were comfortable with the existing legal framework, fearing disruptions or dilution of their perceived rights and privileges.
Furthermore, Bhardwaj's tenure coincided with a period of coalition politics in India. The UPA government, led by the Congress party, relied on the support of various regional and ideological allies to maintain its majority in the Parliament. This intricate political web might have made it challenging to build consensus on comprehensive legal reforms, especially given coalition partners' varying viewpoints and priorities.
Despite these challenges, Bhardwaj remained steadfast in his pursuit of reform. He continued to advocate for the modernization of the IPC and CrPC through various forums, speeches, and engagements with legal experts. His passion for reform was evident, and he was often praised for his dedication to the cause of justice. He formulated several expert committees and the recommendations of the experts have been archived in the Law & Justice system wherein the recently proposed amendments by the Modi government have taken references from the past recommendations of HR Bharajwaj’s era. Everything in the new proposal remains the same as recommended in the past except the chapter and sections numbering have been changed.
In hindsight, the lack of support for IPC and CrPC reforms during Bhardwaj's tenure raises important questions about the dynamics of legal and political change in India. It underscores the complexities of aligning political priorities with the broader needs of the justice system and society at large. The episode also sheds light on the delicate balance that policymakers must strike between tradition and progress, between political exigencies and long-term vision.
While HR Bhardwaj's efforts to reform the IPC and CrPC may not have borne fruit during his tenure, his legacy as a visionary advocate for justice and legal modernization endures. Subsequent administrations and legal experts have continued to grapple with the need for comprehensive legal reforms, recognizing the evolving nature of Indian society and the imperatives of an equitable and efficient justice system. He famously quoted – “Give me a majority government, I will turn around the legal system of India” but unfortunately, he never had the occasion to be a law minister in a full majority Congress party government.
In conclusion, HR Bhardwaj's tenure as India's Law Minister stands as a testament to the challenges of enacting legal reforms within a complex political landscape. His vision to update and modernize the Indian Penal Code and the Code of Criminal Procedure was laudable, but the lack of political support within the Congress party during his time hindered the realization of these reforms. Bhardwaj's legacy serves as a reminder of the intricate interplay between legal, political, and societal forces in shaping the course of justice in India.
Of course, Narendra Modi running the two majority governments having strong willpower to change the old bulky criminal justice system must be given the credit to initiate much-needed legal reforms to serve the 1.4 billion people, it is a welcome change but it needs fast adoption by the legal justice system that is operative at the ground. Similarly, the inclusion of technology and AI in the delivery of the justice system is a desperate requirement to tackle the loads that our courts have to carry while dispensing justice.
The new laws are drafted to combat crime against women, .marrying a woman by concealing identity or having intercourse under the false promise of marriage, promotion and employment will attract up to 10-year imprisonment with a bill introduced on Friday proposing a specific provision to deal with these offenses for the first time.
Union Home Minister Amit Shah introduced the Bharatiya Nyaya Sanhita (BNS) Bill, to replace the Indian Penal Code (IPC) of 1860, in Lok Sabha and said a special focus has been given to provisions related to crimes against women.
"Crime against women and many social problems faced by them have been addressed in this bill. For the first time, intercourse with women under the false promise of marriage, employment, promotion and false identity will amount to a crime," he said.
While courts have dealt with cases of women claiming rape on the basis of breach of promise of marriage, there is no specific provision for this in the IPC.
The Modi government has introduced a bill for the complete overhaul of colonial-era Indian criminal laws. The Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act will be replaced by the Bharatiya Nyaya Sanhita.
The Bharatiya Nagarik Suraksha Sanhita will replace the Code of Criminal Procedure and the Bharatiya Sakshya will replace Indian Evidence Act.
A new offence on acts of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity and integrity of India has been added in the revised laws.
The new bill prioritises laws for crimes against women and children, murders and "offences against the state". For the first time, community service will be one of the punishments for petty offences.
The fines and punishment for various offences have also been enhanced. It seeks to revamp British-era laws, Union Home Minister Amit Shah told parliament. The Indian Penal Code was enacted in 1860.
In a major judicial shake up, the Gujarat High Court judge who refused to pause Congress MP Rahul Gandhi's conviction in the criminal defamation case over his 'Modi surname' remark is among 23 judges recommended for transfer by the Supreme Court Collegium. Justice Hemant M Prachchhak, in a 123-page verdict in July, had rejected Rahul Gandhi's request, saying no case was made out to stay the conviction.
The Collegium has recommended the transfers "for better administration of justice", according to a document put up on the Supreme Court website last night.
In the past, Justice Prachchhak had been a part of the lawyers' team defending former BJP minister Maya Kodnani, an accused in the 2002 Gujarat riots case
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Services and Term of Office) Bill, 2023, to come up in Rajya Sabha today, proposes that top Election Commission officers shall be appointed by the President on the recommendation of a panel comprising the Prime Minister, Leader of Opposition in Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
This move is likely to trigger a fresh face-off between the government and the judiciary, the Centre is set to push legislation that will exclude the Chief Justice of India from the process to appoint the country's top election officers.
The Bill appears to dilute the Supreme Court's March 2023 judgment in which a Constitution bench said Chief Election Commissioners and Election Commissioners must be appointed on the advice of a panel comprising the Prime Minister, Leader of the Opposition and the Chief Justice of India.
The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, chaired by BJP MP Sushil Kumar Modi, presented its 133rd report on "Judicial Processes and their Reform" to both Houses Monday.
The representation of backward communities, women and minorities in higher judiciary is below the desired level and does not reflect the country's social diversity, a Parliamentary panel has said in its report.
The committee said the pendency of cases was piling up due to the long vacations of courts is a very serious issue, it flagged vacations of judges and recommended that judges follow a rotational model instead of courts shutting for vacations.
The panel also recommended bringing a law making it mandatory for Supreme Court and high court judges to disclose their assets annually to an appropriate authority. It said there is a need to institutionalise the mechanism of regular filing of assets by the judges and put it in the public domain. "...the Committee recommends the government to bring about appropriate legislation to make it mandatory for judges of the higher judiciary (Supreme Court and High Courts) to furnish their property returns on an annual basis to the appropriate authority," it said.
A five-judge constitution bench headed by Chief Justice DY Chandrachud today commenced hearing a batch of pleas challenging the Centre's August 5, 2019 decision to abrogate Article 370, a move that had come in for vicious attack by some major opposition parties but earned fulsome praise from those supporting the BJP. But who can recommend the revocation of Article 370 in Jammu and Kashmir when no constituent assembly exists there? The Supreme Court Wednesday put this question to the petitioners who have challenged the abrogation of the constitutional provision that bestowed special status on the erstwhile state.
The constitutional bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant asked senior advocate Kapil Sibal, the lead counsel for the petitioners, as to how can a provision (Article 370), which was specifically mentioned as a temporary provision in the Constitution, become permanent after the tenure of the Jammu and Kashmir constituent assembly came to an end in 1957.
The top court referred to proviso 3 of Article 370 which says, "Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification."
The CJI asked Sibal, "What happens when the tenure of constituent assembly comes to an end? No constituent assembly can have an indefinite life. The proviso to clause (3) of Article 370 refers to the recommendation of the constituent assembly of the state, and it says before President issues a notification the recommendation of the constituent assembly is required. But the question is what would happen when the constituent assembly ceases to exist?"
Kapil Sibal responded, saying it was precisely their point and their whole case is about how the president cannot issue any notification revoking Article 370 without the recommendation of the constituent assembly. Justice Gavai interjected and asked the senior lawyer whether the argument being made is that nothing could have been done about Article 370 after 1957 when the tenure of the Jammu and Kashmir constituent assembly came to an end.
Sr Adv Kapil Sibal said the court is currently interpreting a constitutional provision and it is not here to legitimise the process which is unknown to the Constitution. The hearing will resume shortly as the court has foxed the case on daily hearing mode.
by Aashish Shetty and Satya Sabharwal / 20 July 2023
Law is a matter of the heart, as well as the head. You have to have compassion; it is one of the greatest qualities. Lord Denning and Justice Krishna Iyer have both said that compassion is extraordinarily important in the law, amongst lawyers and particularly amongst Judges. One must be able to assess whether a person has something genuine to say in a case. -Fali Sam Nariman, Senior Advocate
Artificial Intelligence (AI) has revolutionized various industries, and the legal field is no exception. AI technologies, such as natural language processing, machine learning, and predictive analytics, offer promising opportunities to streamline legal processes and improve efficiency. However, the growing reliance on AI in the legal sector also raises significant concerns and perils. This article explores the potential risks associated with using AI in the legal field and emphasizes the need for a balanced approach that considers both innovation and ethical considerations.
Lack of Accountability and Transparency
One of the primary perils of AI in the legal field is the lack of accountability and transparency. AI systems often make decisions based on complex algorithms that are not easily interpretable by human users. This opacity can create significant challenges, particularly in legal proceedings where the right to an explanation is fundamental. If an AI system recommends a particular legal strategy or predicts the outcome of a case, it becomes crucial to understand the underlying reasoning behind these recommendations. Without transparency, legal professionals may struggle to defend or question the outputs of AI systems, leading to a loss of trust in their reliability.
Bias and Discrimination
AI algorithms are trained on historical data, and if this data contains biases, it can perpetuate and amplify them. In the legal field, biased AI systems can have severe consequences, as they may disproportionately impact marginalized communities. For example, if an AI-powered tool is used to predict recidivism rates, it may inadvertently perpetuate racial or socioeconomic biases present in historical data. Similarly, in the legal decision-making process, AI systems can inadvertently discriminate based on protected characteristics, such as race or gender, leading to unjust outcomes. Ensuring that AI algorithms are fair and unbiased requires careful attention to data selection, training methodologies, and ongoing monitoring to mitigate these risks.
Data Privacy and Security Concerns
The use of AI in the legal field involves processing vast amounts of sensitive data, including personal information, financial records, and confidential legal documents. This reliance on AI raises concerns about data privacy and security. Legal professionals must grapple with how AI systems handle and store data, the potential for data breaches, and the risk of unauthorized access. The consequences of a data breach can be severe, undermining client trust, compromising legal strategies, and violating privacy regulations. Striking a balance between leveraging AI capabilities and safeguarding sensitive information is crucial to prevent legal professionals from inadvertently breaching their ethical and legal obligations.
Ethical and Professional Responsibility
Lawyers have a fiduciary duty to act in the best interests of their clients, upholding ethical standards and maintaining professional responsibility. The introduction of AI in the legal field complicates these obligations. When utilizing AI systems, lawyers must ensure they exercise reasonable care and supervision over the technology. They must also take precautions to prevent biases, inaccuracies, or system failures that may harm their clients' interests. However, the fast-paced nature of technological advancements can make it challenging for legal professionals to keep up with the ethical implications of AI use. There is a need for ongoing education and training to enable lawyers to understand the risks associated with AI and make informed decisions that align with their ethical obligations.
Few examples where AI has caused issues in the legal field:
Incorrect Legal Advice: AI systems that provide legal advice or generate legal documents may sometimes provide inaccurate or misleading information. These systems heavily rely on algorithms and machine learning, which are trained on historical data. If the training data contains errors or outdated information, the AI system may provide flawed advice, potentially leading to unfavorable outcomes for clients.
Bias in Sentencing and Parole Decisions: AI algorithms used in predicting sentencing or parole decisions have been found to exhibit bias. These algorithms are trained on historical data, which may reflect systemic biases present in the criminal justice system. As a result, the predictions made by AI systems may disproportionately impact certain demographics, leading to biased outcomes and perpetuating societal inequalities.
Privacy Breaches: The legal field deals with sensitive and confidential information. When AI systems are used to process and store this data, there is an increased risk of privacy breaches. If the AI system is not adequately secured, it can be vulnerable to hacking or unauthorized access, potentially exposing sensitive client information and undermining trust in the legal profession.
E-Discovery Challenges: AI is often employed in e-discovery, which involves sifting through large volumes of electronic data for legal proceedings. While AI can assist in automating the process and identifying relevant documents, there have been instances where AI systems have failed to accurately classify documents or have missed crucial evidence, leading to incomplete or flawed discovery processes.
Lack of Explainability: AI algorithms often work as "black boxes," making decisions without clear explanations. This lack of transparency and interpretability can be problematic in the legal field, where the right to an explanation is fundamental. Lawyers and judges may struggle to understand and challenge the reasoning behind an AI-generated recommendation or decision, hindering the ability to ensure a fair and just legal process.
Ethical Concerns in Autonomous Vehicles and Legal Liability: With the rise of autonomous vehicles, legal questions arise regarding liability in accidents involving self-driving cars. AI algorithms play a crucial role in the decision-making process of these vehicles. Determining who is responsible when an accident occurs, whether it is the vehicle manufacturer, software developer, or the vehicle owner, becomes complex and raises ethical and legal challenges.
These examples illustrate the potential issues and challenges that arise when AI is used in the legal field. It emphasizes the need for careful consideration, oversight, and ongoing evaluation of AI systems to ensure their reliability, fairness, and adherence to legal and ethical standards.
While AI presents immense potential for enhancing efficiency and effectiveness in the legal field, it is crucial to acknowledge and address the associated perils. Legal professionals must navigate the challenges of accountability, transparency, bias, privacy, and ethical considerations when integrating AI systems into their practice. Striking a delicate balance between innovation and ethical concerns will be essential in leveraging AI to its fullest potential without compromising the fairness, integrity, and values that underpin the legal system. By embracing transparency, proactively addressing biases, strengthening data privacy, and ensuring ethical and professional responsibility, the legal field can harness AI's capabilities while safeguarding the principles that are central to the pursuit of justice. Currently, India has no codified laws, statutory rules or regulations, or even government-issued guidelines, that regulate AI per se. The obligations on this subject are set out in the Information Technology Act 2000, and the rules and regulations framed thereunder. With huge volumes of data and events, AI systems can render correct results and/or positives. But getting inaccurate data from unreliable sources can even backfire.
Aashish is a senior technologist and currently pursuing his doctorate in Artificial intelligence from SSBM, Switzerland Satya is an author, columnist and advocate practicing before the Hon’ble Supreme Court of India.
‘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:
Regular Bail: - Is a bail issued to a person who has been arrested and/or was in police or judicial custody.
Anticipatory Bail: - This type of bail is issued prior to the arrest and is usually granted by the Sessions Court or the High Court. It is granted when someone is captured while committing a crime.
Interim Bail: - Is a bail that is issued prior to a hearing in order to get regular or anticipatory bail for a shorter amount of time.
Default Bail: - It is given under Section 436A of the Code of Criminal Procedure when the accused is on trial, in judicial custody, and has already received half of the maximum penalty for the crime.
Anticipatory Bail:- It might be used at various phases of the process. Anyone who expects to be arrested, even if no F.I.R. has been filed against them, can apply for Anticipatory bail. If a FIR has been filed but the investigation has not yet begun (pre-investigation stage), the person can seek Anticipatory bail. At the post-investigation stage, a person can also apply for anticipatory bail. Courts consider the nature of the offense, the role of the accused, and the evidence against the accused while granting anticipatory bail. The High Court or the Sessions Court is expected to award "anticipatory bail" after hearing the Public Prosecutor's case.
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.