To Bail or Not to Bail

 By

Sadia Akhtar 

New Delhi:  The criminal justice system in the country offers the provision of bail as a temporary relief from a jail term, but there are many, who, despite being granted bail end up languishing behind bars for want of legal assistance or money. The judicial philosophy of ‘Bail is the rule and jail an exception’ has been in place for several years but that has not stopped undertrial prisoners from being detained in custody for indefinite periods.

Articles 14 and 22(1) of the Indian constitution make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. However, in reality there seems to be little application of this principle.

“There are over 4 lakh people in 1387 jails in India with over 68% being undertrials – principally due to non-availability of bail amount. The bail system ensures that rich stay out of jail and the poor languish in prisons,” says Shobha Aggarwal, lawyer and joint secretary  of Public Interest Litigation Watch Group, an advocacy group which has been campaigning on ‘bail not jail’ since the past two years.

Bail is meant to secure presence of the accused during the trial on the conditions that he or she does not tamper with evidence or attempts to influence witnesses. The security is forfeited if one does not appear in the court. “General rule is that bail surety should not be more than the capacity of the person. In most cases, the surety amount is between Rs 10,000 and Rs 15, 000,” says Imran Ali, a lawyer at the Supreme Court.

However, there are many who have been forced to stay behind bars even for bailable offences.  “There are people who have been denied bail for crimes like theft of a paltry sum of money. They do not have a lawyer or anyone who can pursue their case or apply for bail. Most of the poor accused are largely Schedule Castes or Schedule Tribes or religious minorities – it is these people who are incarcerated in jails,” says Kashif Ahmed Faraz, Assistant National Coordinator of Association for Protection of Civil Rights, an NGO which has been working towards the cause of custodial killings, false implications and illegal detentions.

Earlier in March this year, Union Law Minister Sadananda Gowda, acknowledging the need to revamp the system of granting bail, mooted the possibility of a Bail Act that would ensure “uniformity and predictability” in matters relating to grant of bail in the country. However, experts are divided over the merits of the move.

“The law minister wants the British and American bail laws to be studied. This reflects his colonial mentality. There are enough Supreme Court judgements on the issue of bail to act as guide,” says Aggarwal.

There are state legal authorities for the purpose of providing legal aid but there is a wide gap between the goals set and met. “There are loopholes at the implementation level. These state legal bodies also demand money at times,” says Ali.

Some experts have also mooted the idea of having a Bail Corpus Fund through which surety amount can be paid. “The bail money should be proportional to the economic status of the person. The rich have no problem in arranging a higher bail amount. The poor should have their bail amount through an all India Bail Corpus Fund,” says Aggarwal.

The principle should be ‘bail not jail’. Not even 1% of those accused jump the bail. Vast majority of the accused get acquitted. Why should their liberty be curtailed for years in jail? Since the government has all the data of all the citizens through Aadhar (biometric data), Pan-card and bank account details, the liberal bail policy would work out well, added Aggarwal.

Lack of legal awareness among people also acts as an impediment in securing bail. “The need of the hour is imparting legal aid and creating legal awareness among the poor and the illiterate.  Apart from legal activism, clear provisions for securing bail are crucial so that financial poverty does not become a reason of violating someone’s liberty,” says Ahmed.

[The above article from 'Converge' has been reproduced here for educational and non-commercial purposes. The article was originally published at: http://theconverge.in/to-bail-or-not-to-bail/ ]

From ‘Mother India’ To ‘Bharat Mata Ki Jai’: ‘Azadi’ Eludes Indian Women

By

Shobha Aggarwal

Women in India do not appear to be active participants in the debate around the chanting of the slogan ‘Bharat Mata Ki Jai’. Even the debate in the media is dominated through discourse by men. The chanting of this slogan – necessary to prove ‘patriotism’ – is an obsession only of the so called ‘patriotic’ men. Generally men belonging to right-wing political parties are aggressively seen chanting the slogan ‘Bharat Mata Ki Jai’; rarely is a woman heard chanting it except on a political platform. The slogan is not just a construct of a Brahmanical patriarchal mindset, it is an insult to women-hood and camouflages the ugly truth of how women are treated in this country. The ‘Mother India’ – a 1957 Hindi film – while depicting oppression and suffering of Indian women also glamorizes it. The image of an ideal woman carried by generations of Indian men is of an all sacrificing woman in face of insurmountable adversities and has given rise to similar expectations from all women. In the same vein the slogan ‘Bharat Mata Ki Jai’ gives a free hand to the patriarchal capitalist forces to exploit the geographical region called India the same way as its women. The harsh truth is that just to stay alive and not being murdered at the hands of the patriarchal forces in this country is an arduous task for women. If a woman survives not being murdered either in the womb or after birth then she faces the risk of being burnt alive at the funeral pyre of the husband (Sati) or for not bringing sufficient dowry. The female child is so much undesired by most communities that according to  2001 census data even “non-violent” Jains were competing with Sikhs when it came to female foeticide – an uncomfortable fact around which there has been little debate. Hindus, needless to say, are worse when it comes to “missing women” in India. For women, odds for survival are better in rural India compared to urban India. The chances of survival further improve if a female child is born in a minority Muslim or Christian family. Anyone in doubt only need to check the statistical data of the Census of India of the last three decades.

If a girl child manages to survive by bypassing foeticide and infanticide the next big battle for her is how to avoid getting raped. And when it comes to rape for the sick male mind age is no bar. From a two month old female child to a seventy year old woman it is a fair game for men. And how does a two month old girl child save herself from her male relatives or neighbours? As far as domestic violence goes, women being at the bottom of the pyramid in most communities even a male from the most oppressed section of the society feels free to beat up his earning wife and spend all her savings in consuming liquor. Staring and stalking faced by women in everyday life is a social reality as is sexual harassment of women at public spaces, public transport and work place. Discrimination in jobs – civil as well as military – is rampant; under-representation of women in parliament, judiciary and executive is considered the norm. And yet the women are referred to as the better half. This is the height of patriarchal cunningness.

Left to themselves, the Indian men would rather that women are banished even from public spaces. Therefore men have made public spaces almost inaccessible for women. Going out alone at night is unthinkable for women in most cities in India, but even in broad daylight it is not without risks. Just walking in Connaught Place (main business district in New Delhi) abuses like mother fucker, sister fucker pour in your ears like molten lead all the time. In the daily life of a woman the issue is not really whether one chants ‘Bharat Mata Ki Jai’ or not as long as she does not have to get her sensitivities and sensibilities hurt by repeatedly being forced to hear abuses centering around a woman’s private parts to wit ‘teri ma ki  …’. Often one feels like stopping and hitting these men at the most sensitive part of their anatomy but alas! Openly spitting, blowing their nose, making guttural sounds and urinating constantly in public spaces is a favourite hobby of men irrespective of their class or educational status. A crass and crude show of male power!

Subjugation of women in India is the only kind of oppression that cuts across caste, class, community and race. Women would prefer if men give up these uncivilized, obscene, vulgar, brutal practices against women rather than merely chant ‘Bharat Mata Ki Jai’. In a country where the incumbent Prime Minister refuses to let his wife live with him in his official residence, the hollowness of the slogan is all too apparent. Women don’t really care about the slogan. Women in India want ‘Azadi’ not idolatry! Just let the women exercise their constitutional right to equality and liberty in all spheres of life – political, economic, social and cultural without any discrimination. Till then the chant should be:

Women of India unite, you have nothing to lose except your patriarchal chains

(The writer is a woman.)

Also available at: 

1. http://www.countercurrents.org/aggarwal010516.htm

2. https://kashmirobserver.net/2016/opinions/mother-indiato-bharat-mata-ki-jai-nari-mangay-azadi-6147