“No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
—Magna Carta
These lines from Clause 39 of the Magna Carta form the bedrock of personal liberty and due process. In India, right to life and personal liberty is the most sacrosanct fundamental right. A person can be deprived of his liberty only “according to the procedure established by law”. There is a struggle between the procedure established by law and the due process of law as required by the Eighth Amendment to the American Constitution—the two poles of bail jurisprudence not just in India, but around the world. Even though the makers of India’s Constitution chose to adopt “procedure established by the law”, the Supreme Court in Sunil Batra as well as in Maneka Gandhi interpreted it as “due process of law”.
The discussion on due process of law and procedure established by law in the context of personal liberty has assumed relevance as a result of inconsistency in granting bail to activists, journalists and comedians. Many on social media and television have made insinuations that the courts, especially the Supreme Court, have shown a bias in favour of granting liberty to people known to be pro-government, while those who have been critical of the government are treated differently. The right to personal liberty seems to be contingent upon not the procedure established by law, but the identity and ideology of the person in conflict with the law. Courts continue to regard bail as a compromise between effective law enforcement and an individual’s liberty. And the balance between the two seems to be based solely on the discretion of judges.
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Denial of bail in the 2G case changed the jurisprudence of bail to the detriment of the arrested person. In the transition from the period of the Balchand case, where the Supreme Court stated that the “basic rule may perhaps be tersely put as bail not jail”, to denial of bail to Munawar Faruqui on the ground that his freedom may cause a law and order problem, the rule of bail has again shifted from due process of law to procedure established by law, and from individual liberty being paramount to the primacy of the State’s interest.
The object of bail is to secure the presence of the accused at the trial. Bail is not to be withheld as a punishment. However, it does not stand true in the case of Sudha Bharadwaj or Khalid Saifi, who have been incarcerated under the draconian Unlawful Activities (Prevention) Act. As per the prison statistics compiled by the National Crime Records Bureau, many undertrials languish in jails for several years—74.08 per cent were confined for up to 1 year, 13.35 per cent for 1-2 years, 6.79 per cent for 2-3 years, 4.25 per cent for 3-5 years and 1.52 per cent for more than 5 years. This clearly shows withholding of bail is being used as a form of punishment, and that the courts are complicit in this injustice.
Courts were the first line of defence for citizens against being deprived of their liberty. If the fate of the bail applications of Faruqui, Bharadwaj and scores of others is any indication, our courts have turned a blind eye towards this assertion. Today, with indiscriminate and often unnecessary arrests, the courts need to take a more liberal approach towards bail. Often in matters that gain media prominence, the judges of lower courts tend to get overcautious and take a “safe approach” towards denial of liberty. This psyche has developed due to interference by high courts and even the Supreme Court in the past, when judges granting bail in prominent cases faced questioning or snide remarks, often putting their promotions in jeopardy.
“Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system, that the crucial power to negate it is a great trust exercisable not casually, but judicially, with a lively concern for the cost to the individual and the community,” the late jurist Justice V.R. Krishna Iyer had observed. These words need to be prominently displayed in all courtrooms to remind judges that bail, not jail, is the rule.
(Views are personal.)
Supreme Court advocate and founder, Indian Civil Liberties Union
