Revisiting Krishna Iyer’s Treatise on Bail – Part II
In the Context of the Cases of Umar Khalid & Others
Benjamin
Cardozo and Lord Camdon have brought to the fore as to what constitutes
judicial discretion used by judges in the context of bail:
“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.” —Benjamin
Cardozo[1]
and
“..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 often times caprice; in
the worst, it is every vice, folly and passion to which human nature is liable
…”—Lord Camdon[2]
Js. V.R.
Krishna Iyer and Js. D.A. Desai through their judgement dated 31.01.1978 in
Babu Singh and Others V. The State of U.P.[3] gave a scientific orientation to
the crucial issue of bail. These judges accepted that hitherto the ferocity of
the crime had eclipsed the real purposes of bail or jail; that other sensitive
and sensible circumstances were ignored, and that the fate of applicants for
bail in the higher judiciary had largely hinged on the hunch of the bench as on
expression of judicial discretion.
The
personal liberty of an accused or convict is fundamental as enunciated in
Article 21 of the Constitution of India: No person shall be deprived of his
life or personal liberty except according to procedure established by law, it
can be denied only by procedure “established by law”. The last four words of
Article 21 are the life-force of that vital human right.
The
fundamental and constitutional right of bail is available to those accused,
charged or convicted. The object to keep a person in judicial custody pending
trial or disposal of an appeal is primarily to ensure the attendance of the
person at trial. That’s the crux. Lord Russel, C.J. ruled:
"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."[4]
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.”[5]
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 ..”
Umar
Khalid & Others are hardly the
sort of people who if given bail would not make themselves available for trial.
They are unlikely to take the first flight to Timbuktu upon release on bail and
disappear. It is in their interest to get over with the trial fast. But they
are the victim of the slow motion of the justice system – precisely the right
candidate for bail.
Js. Krishna
Iyer simplifies the guiding principle for those emotionally charged and are
won’t to say goodbye to logic and common sense when bail is being prayed:
“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.”
Umar
Khalid & Others don’t have
a bad record – particularly a record which suggests that they are likely to
commit serious offences while on bail. They are not habitual offender. They qualify
for bail on this count too.
Js. Krishna Iyer makes an
impassioned plea for public justice:
“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.”
Umar
Khalid & Others have prayed for
bail so that they can prepare a better defence of himself. It is a fair enough
ground for his bail.
Justices Krishna Iyer and
Desai elaborate:
“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.”
“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 innocent being absolved from the inordinate ordeal
of criminal proceedings.”
The trial would take a very long time as the
Prosecution intends to examine 800-900 witnesses. So there is no
likelihood of the conclusion of the trial in the foreseeable future. During this period Umar Khalid & Others will continue to languish in jail!
Why should Umar Khalid & Others be denied bail when the trial will take years to conclude. If the legal system cannot assure that the trial would
be completed fast why deny bail and liberty to the accused.
Forget Umar Khalid & Others for a moment. They are just accused. Juxtapose
it with what even those already convicted by a court stand to avail if they go
in appeal. This weighty issue has been dealt at length by Js. Bhagwati in his
judgement dated 02.09.1977 in Kashmira Singh V. The State of Punjab[6]. The rationale
of this practice – not to release on bail a person who has been sentenced to
life imprisonment – could have no application where the Court is not in a
position to dispose of the appeal for five or six years.
Js. Bhagwati makes it
crystal clear that:
“It would indeed be a travesty of justice to keep a person in jail for a
period of five or six years for an offence which is ultimately found not to
have been committed by him.”
Remember
that Js. Bhagwati was dealing with the bail plea of a person convicted of
murder and sentenced to life imprisonment by the High Court who had come in
appeal to the Supreme Court. Yet he was granted bail till the disposal of the
appeal which could have taken a few years. Remember again that the cases Umar Khalid & Others are under trial. Far from being convicted even
the trial is getting inordinately delayed. Their bail applications should
justifiably be allowed.
[Shobha Aggarwal is an
advocate and Jt. Secretary, Public Interest Litigation Watch Group. Part I of
this article appeared in SACW on 13.05.2014 See: India: Revisiting Krishna Iyer's
Treatise on Bail In the Context of Tejpal’s Case - South Asia Citizens Web]
