Bails during andemic, and beyond

Written By Anuj Tiwari and Sajjan Kumar

It is a well accepted legal principle that bail for under-trial prisoners is a rule except where there are serious apprehensions of the undertrials fleeing justice, tampering with evidence or committing an offence. The past conduct of the accused as well as the limited efficiency and resources of the state machinery should be grounds for bail.

However, it would not be wrong to say that, in practice, Indian courts follow a conservative approach in granting bail. It is an open secret that a plea bail at a magisterial-level court is mostly for the formal purposes of getting a quick rejection so that the undertrial can then approach the higher courts. This has led to overcrowding of prisons of India to the extent of 118.5 per cent of their capacity — in states such as Uttar Pradesh, this is as high as 168 per cent according to the statistics of the National Crime Record Bureau. Around 69 per cent of the total prisons’ inmates are under trial according to “Prison Statistics 2019”. In fact, as the Nirav Modi and Vijay Mallya cases show, the deplorable conditions of prisons are being used as a reason by fugitives living abroad to claim immunity from extradition to India.

It was, therefore, comforting that the Supreme Court in March 2020 took cognisance of the overcrowding of prisons. It acknowledged the administrative difficulties posed by the COVID-19 pandemic in such overcrowded settings and directed all states and Union Territories to constitute a High-Powered Committee (HPC) to determine the class of prisoners who could be released on interim bail during the pandemic. HPCs across states and UTs considered the nature and severity of offences the prisoners were charged with and identified those who could be released. This led to the release of a large number of prisoners across India. For instance in Uttar Pradesh alone, around 14,800 prisoners were released.

The released prisoners are bound to the conditions that they would not tamper with evidence, influence witnesses, commit an offence of any nature while being on bail and not try to flee from the rigours of justice. They are currently on interim bail for almost 9-10 months. It would be safe to assume, that subject to exceptions, the released prisoners have been adhering to the aforesaid general conditions in addition to the specific conditions imposed upon them in the release order. Even otherwise, in case, any act on their part infringes on any of these conditions, the law provides for sending them back to prison.

It can be satisfactorily inferred that most of the released prisoners have satisfied the general conditions of bail. Further, the severity of offences has already been reckoned by the HPC while identifying the prisoners so released. But this is not just about the pandemic. The sad truth that nearly 70 per cent jail inmates are undergoing trials — they have not been proved guilty — should be a compelling reason for long-term solutions. It is logically and legally absurd to send the under-trial, who were released during the pandemic, back to jail — all the more so since the SC has acknowledged the inhuman conditions in the country’s prisons.

Hence, it would be extremely desirable to confirm to the core jurisprudence on bail, which traces its lineage from the Magna Carta stating that the under trial accused do not belong in a jail. If there’s any apprehension about their conduct, we suggest that committees similar to, and under the supervision of, the HPCs could be formed at the district level. These committees may, on a case to case basis, consider recommending regular bail for those who have been released on interim bail due to COVID-19. These district committees may also consult with the investigating officers and public prosecutors to verify that the undertrials concerned have not violated any of the conditions of the interim bail. In the absence of any compelling reasons for detention, the committees may recommend bail for these undertrials on regular bail during the pendency of his/her trial.

The granting of such regular bails would only further the cause of justice, for, in words of Justice Krishna Iyer, it makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody.

Tiwari is a Delhi based advocate and Kumar is a political analyst associated with Peoples Pulse

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