By Dr. P.S. Sahni
“A separate
‘bail act’ is under consideration of the Government of India that would limit
the discretionary powers of courts in granting relief to an accused.”
- The Times of India, 26.3.2016
On 4th of April,
2016, the Supreme Court of India is scheduled to hear the bail plea of Prof.
G.N. Saibaba, lecturer, Ram Lal Anand College, Delhi University and who is
presently lodged at Nagpur jail since May, 2014.
Earlier in September 2013
the police had raided Saibaba’s residence and took away what was alleged to be
‘incriminating evidence’. Saibaba had been assisting the Maharashtra police in
its probe whenever it descended in Delhi. A charge sheet was filed in the case in
February, 2014 and a non-bailable warrant procured against Saibaba. He was
eventually arrested. As Prof. Saibaba was cooperating in the probe there was no
need for his arrest during the trial period. Ironically he has been arrested
under various provisions of the Unlawful Activities (Prevention) Act, 1967 [UAP
Act] as amended from time to time; some of the sections under which he has been
charged include S. 13, 18, 20 and 39 of the UAP Act. Under this law
anticipatory bail is expressly prohibited. Even the regular bail gets denied
under the Act if the court on a perusal of the case diary or the report
prepared by the police is of the opinion that there are reasonable grounds for
believing that the accusation against such person is prima facie true. This goes against the fundamental principles of
granting bail to an accused. It is ultra
vires the Constitution as the liberty of the accused is unnecessarily curtailed.
It is about time that the constitutionality of sections of UAP Act and other
similar Draconian laws – under which bail is denied – gets challenged, notwithstanding
that the constitutionality of the same may have been upheld earlier. No
‘special law’ should override the fundamental right to liberty of any citizen
as enshrined in Indian Constitution.
Prof. Saibaba suffers from
Post Polio Residual Paralysis of both lower limbs since age 5 years. He also
has weakness of upper limbs. He suffers from acute low back pain due to the
disturbed anatomical configuration of his bones and spine. He also suffers from
cardiac problem and has high blood pressure. Prof. Saibaba is wheel chair bound
and needs the services of an attendant for activities of daily living.
On 30 June, 2015 Prof.
Saibaba was granted conditional bail on medical grounds for three months by a
Division Bench of the Bombay High Court presided over by the Chief Justice; and
on 4 September, 2015 the bail was extended till 31 December, 2105. The bail was
cancelled on 23 December, 2015 by a Single Judge of the Nagpur Bench of Bombay
High Court! The fact that during the period of bail there is nothing on state
record to show that Prof. Saibaba has attempted to disturb or disrupt justice
should have paved the way for bail. Ironically on 29 February, 2016 the Supreme
Court passed the following order:
“We have perused the
counter affidavit as also the additional affidavit filed by the State of
Maharashtra. We have also heard learned counsel for the petitioner. It emerges
that out of 34 witnesses, cited by the prosecution, some of the material witnesses
have already been examined whereas 8 further material witnesses are yet to be
examined. …
At the present moment,
we consider it just and appropriate to direct the trial court to hold
day-to-day trial with effect from 04.03.2016 so as to record the statements of
all material witnesses. The statements of the material witnesses, referred to
hereinabove, be positively concluded before the next date of hearing.
List again on
04.04.2016.”
There is an apparent apprehension
that if enlarged on bail, Prof. Saibaba would jump bail and flee the country or
otherwise influence material witnesses – both these assumptions are unfounded.
Far from fleeing in the physical sense Prof. Saibaba is wheelchair bound and is
not even able to stand on his own feet. Besides there is not even an allegation
against him that he has ever tried to influence witnesses.
How late Justice V.R. Krishna Iyer would have
adjudicated on the issue: Glimpses from his treatise on bail.
“Prof. G.N. Saibaba
has moved the Supreme Court of India for bail, having been arrested in May 2014
under various provisions of Unlawful Activities (Prevention) Act, 1967 as
amended from time to time. During this period the petitioner has been out on
bail for medical treatment for about six months. The examination of the
material witnesses is underway.
Our justice system, even in
grave cases, suffers from slow motion syndrome which is lethal to “fair trial”,
whatever the ultimate decision. Speedy justice is a component of social justice
since the community, as a whole, is concerned in the criminal being condignly
and finally punished within a reasonable time and the innocent being absolved
from the inordinate ordeal of criminal proceedings. This is by the way,
although it is important that judicial business management by engineering, not
tinkering, so as to produce efficient expedition, is an urgent, high-priority
item on the agenda of court reform, to be radically undertaken none too soon.
Against the backdrop of
social and individual facts the court must consider the motion for bail. The
correct legal approach has been clouded in the past by focus on the ferocity of
the crime to the neglect of the real purposes of bail or jail and indifferent
to many other sensitive and sensible circumstances which deserve judicial notice.
The whole issue, going by decisional material and legal literature has been
relegated to a twilight zone of the criminal justice system. Courts have often
acted intuitively or reacted traditionally, so much the fate of applicants for
bail at the High Court level and in the Supreme Court, has largely hinged on
the hunch of the bench as an expression of ‘judicial discretion’. A scientific
treatment is the desideratum.
The Code is cryptic on this
topic and the court prefers to be tacit, be the order custodial or not. And
yet, the issue is one of liberty, justice, public safety and burden on the public
treasury, all of which insists that a developed jurisprudence of bail is
integral to a socially sensitized judicial process. Personal liberty, deprived
when bail is refused, is too precious a value of our constitutional system
recognised under Art. 21 that the crucial power to negate it is a great trust
exercisable, not casually but judicially, with lively concern for the cost to
the individual and the community. To glamorise impressionistic orders as
discretionary may, on occasions, make a litigative gamble, decisive of a
fundamental right. After all, personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure established by
‘law’. The last four words of Art. 21 are the life of that human right.
The doctrine of Police
Power, constitutionally validates punitive processes for the maintenance of
public order, security of the State, national integrity and the interest of the
public generally. Even so, having regard to the solemn issue involved,
deprivation of personal freedom, ephemeral or enduring, must be founded on the
most serious considerations relevant to the welfare objectives of society
specified in the Constitution.
What, then, is ‘judicial
discretion’ in this bail context? In the elegant words of Benjamin Cardozo:
“The judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and subordinated
to ‘the primordial necessity of order in the social life’. Wide enough in all conscience
is the field of discretion that remains.”
Even so it is useful to notice the tart terms of Lord
Camden that
“the discretion of a judge is the law of tyrants: it
is always unknown, it is different in different men; it is casual, and depends upon
constitution, temper and passion. In the best it is oftentimes caprice; in the
worst it is every vice folly and passion to which human nature is liable. . . .
"
Some jurists have regarded
the term ‘judicial discretion’ as a misnomer. Nevertheless, the vesting of discretion
is the unspoken but inescapable silent command of our judicial system, and
those who exercise it will remember that:
“discretion, when
applied to a court of justice, means sound discretion guided by law. It must be
governed by rule, not by humor; it must not be arbitrary, vague and fanciful,
but legal and regular.”
“An appeal to a
judge’s discretion is an appeal to his judicial conscience. The discretion must
be exercised, not in opposition to, but in accordance with, established
principles of law.”
Having grasped the core
concept of judicial discretion and the constitutional perspective in which the Court
must operate public policy by a restraint on liberty, we have to proceed to see
what are the relevant criteria for grant or refusal of bail. What is often
forgotten, and therefore warrants reminder, is the object to keep a person in
judicial custody pending trial or disposal of an appeal. Lord Russel, C.J. said:
“I observe that in
this case bail was refused for the prisoner. It cannot be too strongly impressed
on the magistracy of the country that bail is not to be withheld as a punishment,
but that the requirements as to bail are merely to secure the attendance of the
prisoner at trial.”
This theme was developed by
Lord Russel of Killowen C. J., when he charged the grand jury at Salisbury
Assizes, 1899:
“....it was the duty
of magistrates to admit accused persons to bail, wherever practicable, unless
there were strong grounds for supposing that such persons would not appear to
take their trial.”
In Archbold it is stated that:
The proper test of
whether bail should be granted or refused is whether it is probable that the
defendant will appear to take his trial…
The test should be
applied by reference to the following considerations:
(1) The nature of the accusation…
(2) The nature of the evidence
in support of the accusation…
(3) The severity of the punishment
which conviction will entail....
(4) Whether the sureties
are independent, or indemnified by the accused person...
Perhaps, this is an overly
simplistic statement and one must remember the constitutional focus in Arts. 21
and 19 before following diffuse observations and practices in the English system.
Even in England there is a growing awareness that the working of the bail
system requires a second look from the point of view of correct legal criteria
and sound principles, as has been pointed out by Dr. Bottomley.
Let us have a glance at the
pros and cons and the true principle around which other relevant factors must
revolve. When the case is finally disposed of and a person is sentenced to
incarceration, things stand on a different footing. We are concerned with the
penultimate stage and the principal rule to guide release on bail should be to
secure the presence of the applicant who seeks to be liberated, to take
judgement and serve sentence in the event of the court punishing him with
imprisonment.
It is not only traditional
but rational, in this context, to enquire into the antecedents of a man who is applying
for bail to find whether he has a bad record – particularly a record which
suggests that he is likely to commit serious offences while on bail. In regard to
habituals it is part of criminological history that a thoughtless bail order
has enabled the bailee to exploit the opportunity to inflict further crimes on
the members of society.
We must weigh the contrary
factors to answer the test of reasonableness, subject to the need for securing
the presence of the bail applicant. 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. And if public justice is to be promoted, mechanical detention should
be demoted. In the United States, which has a constitutional perspective close
to ours, the function of bail is limited; ‘community roots’ of the applicant
are stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship
is losing ground. The considerable public expense in keeping in custody where
no danger of disappearance or disturbance can arise, is not a negligible consideration.
Equally important is the deplorable condition, verging on the inhuman, of our
sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration
makes refusal of bail unreasonable and a policy favouring release justly
sensible.
Having regard to this
constellation of considerations, carefully viewed in the jurisprudential
setting above silhouetted, we are of the view that, subject to certain safeguards,
the petitioner Prof. G.N. Saibaba is eligible to be enlarged on bail.”
[Extensive and exclusive
quotes are from the case Babu Singh and
others v. The State of Uttar Pradesh, AIR 1978 SC 527
Bench: Justice V.R. Krishna
Iyer and Justice D.A. Desai]
(Dr. P.S. Sahni,
Orthopaedic Surgeon is a member of PIL Watch Group. The group is campaigning on
‘bail not jail’ since 2014 particularly in cases of public importance wherein a
socio-political environment has been manufactured which goes against the
accused getting justice; the philosophical basis and theoretical framework
being provided by Justice Krishna Iyer’s treatise on bail)
Email:
pilwatchgroup@gmail.com)
