“Bail rule, Jail exception” principle by Supreme Court not applied uniformly by Indian courts

Aryan Khan, son of Bollywood superstar Shah Rukh Khan’s arrest in October and over 20 days of incarceration shocked the nation and brought the question of arbitrary arrests and uneven bail provisions to media attention. But there are lakhs of people languishing in jail as 'undertrial prisoners' who fade into oblivion. These prisoners whose lives are wasted inside the four walls of prisons need serious attention.

For instance, life for Jagjivan Ram Yadav started at 70 when he stepped out of Faizabad jail after spending 38 years as an undertrial prisoner without any trial ever. He was arrested in 1968 on murder charges and was released in April 2006. In all these years, he did not even know why he was in jail. Sometime along the way he lost his mental health and was sent to the mental asylum. His case was once taken up by trial court in Faizabad district of Uttar Pradesh but the police said the case records were missing. Accordingly, the court said that Mr Yadav could neither be released on bail nor be acquitted in the absence of the records. He had a wife and son who had not seen him in all these years thinking he was dead since they never heard from him after his arrest. There has been no apology or compensation from the State for robbing him of 38 years of his life.

Mohd Aamir Khan was 18 when in 1998 he was picked up by police in plain clothes from the by-lanes of old Delhi and taken to an undisclosed location where he was kept for 3 days and tortured. Succumbing to the police torture he signed blank papers. He was then produced before the magistrate court showing arrest on charges of 19 terror cases. He languished in jail, ‘framed as a terrorist’ for 14 years as under-trial prisoner before being released in 2012 acquitted of all charges in all the cases.

But the stories of lakhs of Jagjivan Rams and Mohd Khans languishing in jail have been forgotten. Also overlooked is the glaring difference between case of Yati Narsinghanand who got bail in just one month despite being a repeat offender of violent anti-Muslim hate speeches including a call for genocide and that of Dr Kafeel Khan who languished in jail for almost a year for giving a speech which Allahabad High Court found to be on Hindu-Muslim unity. Why this blatant arbitrariness?

A shocking 70% of Indian prisoners are undertrial inmates which means they are in jail without their crime proven according to Prison Statistics of India Report 2019 (PSI 2019). In USA this number is a mere 23.03%. The prison occupancy capacity in India is 4,03,739 but the actual occupancy is 118% i.e. 4,78,600 inmates. Out of which 3,30,487 (69.05%) are undertrial. The number increased from 3,23,537 in 2018 to 3,30,487 in 2019 clocking a rise of 2.15%. Number of undertrial prisoners increased at a faster rate between 2001 and 2019 than rate of convicted prisoners. The numbers were around the same in the early 70s but the gap started widening during the early 80s. Uttar Pradesh tops the list with highest number of undertrial prisoners, 73,418, constituting 22.2% of total followed by Bihar (9.5%, 31,275 undertrials) and Maharashtra (8.3%, 27,557 undertrials). As many as 5,011 inmates have been in jail for over five years with highest number of them, 42.74%, just in Uttar Pradesh. A majority of under-trials (70.6 per cent) are illiterate or semi-literate which indicates that they are socially and economically backward.

These shocking numbers are a testimony of the gross violation of the basic principles of criminal jurisprudence that of “presumption of innocence till proven guilty”, and “right to fair and speedy trial”, and the constitutional “right to life and personal liberty.” Thousands to lakhs of lives are destroyed every year as they languish in jail without any crime along with their families, who either give up trying for bail, or spend all their resources in running from one court to another for years. It also puts a burden on India’s prison system which is already occupied beyond capacity.

The provision of bail is an extension of the basic principles of criminal jurisprudence and constitutional rights. The Law Commission of India in its 268th report observed that the principle of generally granting bail and jail be an exception is the logical and consistent adaptation of the principles enshrined in the Universal Declaration of Human Rights, the European Convention on Human Rights, and several other conventions. The Commission also noted that historically, bail was a tool to ensure the appearance of the accused person at trial or to prevent them from tampering with evidence or witness. There are no other reasons to keep any individual in jail unless their crimes are proven.

The Supreme Court of India too has laid down the ‘Bail rule, jail exception’ principle in a landmark judgement in the case of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447) basing it on the Fundamental Rights guaranteed by the Constitution particularly the right to liberty under Article 21. Supreme Court has also from time to time reminded High Courts and lower courts to follow the principle.

Yet, obtaining bail in criminal cases is one of the most arduous tasks and riddled with unpredictable variables resulting in large numbers of undertrial prisoners.

As many as 91,000 bail pleas are pending before the High Courts across the country according to National Data Judicial Grid (NDJG). Another 1,96,861 bail pleas are pending in district courts. And 931 pending petitions for interim, regular or anticipatory bail before the Supreme Court. The apex court recently expressed concerns over these numbers and directed the High Court to clear the large backlog.

Overburdened courts is one of the reasons so many people cannot get bail. According to NJDG, as on date, 2,66,24,817 total criminal cases are pending across India, out of which 2,07,06,446 i.e. 77% are more than one year old and 14% of the cases are 5 to 10 years old. Indiscriminate arrests, lack of legal awareness about right to bail, lack of efficient and dedicated lawyers, inability to furnish the bail surety are some of the other reasons.

Advocate Saurabh Kunal who practices both in Supreme Court and Bihar’s Chhapra district says, “The police actions are arbitrary. They file FIR against “unnamed persons” and then pick up anybody they like. Some of these inmates do not even get a copy of the FIR. They do not know why they are in jail, but they are so poor that they accept it. Life outside jail do not have any attraction for them anyway, as they would struggle to arrange for two times meals, so they do not even try for bail. Their family members also do not want them. They build a life inside jail, almost like prison staff. They will wash the clothes of powerful prisoners, cook for them, do their massage etc.”

Law Commission of India recommended that sections of Criminal Jurisprudence be amended to stop arbitrary arrests and to ensure that every arrested person is fully explained the nature of the allegations they are facing and their right to bail, free legal aid etc in writing and in a language they understand.

However, there is more to the story than poverty or illiteracy. Otherwise, what explains the arrest and incarceration of Aryan Khan, son of one of the most influential person in India, for over 20 days? Why did P. Chidambaram spend 106 days in jail before Supreme Court remembered that Bail is the rule? Why do hundreds of human rights activists, students and academics continue to languish in jail under the present regime for years without a trial and their repeated bail applications denied? Activist Father Stan Swamy who was arrested in Elgar Parishad case along with Sudha Bharadwaj, Varavara Rao, Anand Teltumbde and others died in jail as an undertrial prisoners. Activist Sudha Bharadwaj have been in jail for over three years without trial. Dr Kafeel Khan, paediatrician at Gorakhpur Hospital, journalist Mandeep Punia, comedian Munawar Faroqui have all had to spend time in jail for months to year on flimsy grounds without a chargesheet or trial.

In contrast, pro-government journalist Arnab Goswami’s bail petition came up for a hearing before Supreme Court within a day of filing and he promptly got bail with the SC Bench strongly upholding personal liberty. In over dozens of cases of mob lynching by self-proclaimed cow vigilantes associated with right wing Hindutva groups, the accused persons are all out on bail and the victim’s family have not got any justice. Many accused in these cases are poor and illiterate but that did not stop them from getting bail because the ruling party actively provided them legal help in their bail applications and appeals.

In 2018 Jharkhand High Court granted bail to eight out of the 11 persons (including the four main accused) who had been convicted and sentenced to life imprisonment by a Fast Track Court for the lynching of Alimuddin alias Asgar Ansari. BJP minister Jayant Sinha had confirmed that BJP members, including himself, had paid for the legal expanses of the accused in the case.

No amount of bail reforms or amendments in CrPC or Supreme Court guidelines would solve this puzzle why some get bail easily and some don’t until the Courts apply their judicial discretion evenly without prejudice, activists say. “Poverty and illiteracy are definitely some of the key reasons why large number of undertrial prisoners cannot obtain bail. But it is easy to exploit those factors if you want to target those who are inconvenient to you or belong to certain communities,” says Lawyer-activist Akram Akhtar Chauhan who practices in UP. “In Ghaziabad, in the case of a murder and loot of a milkman FIR was registered against unknown persons. Soon, three Muslim men were picked up. It has been over 3 years they are still struggling to obtain bail. Whereas, in Muzaffarnagar during the 2013 riots a group of men killed the brother of a witness after repeated threats which were informed to the police. FIR was registered against the accused person by their name, there were strong evidence against them, yet they all have walked out on bail,” said Chauhan. “Outcome of a bail proceeding also largely depends upon the prosecution. They would weaken or strengthen a case, contest or not contest the bail plea depending upon the community the accused belong to. How would we solve these issues?” he added.

Congress party’s promise to implement ‘bail rule, jail exception’ principle, BJP’s objection.

Despite a strong precedent set by Supreme Court, the ruling party has strongly opposed the “Bail rule, jail exception” principle which was set out as a promise in Congress party’s 2019 election manifesto.

The chapter titled ‘Review Of Laws, Rules And Regulations’ of the manifesto noted that, “…we are an over-legislated and over-regulated country. Laws, Rules and Regulations have proliferated and restricted freedoms. Consequently, there are severe restrictions on innovation, enterprise and experimentation, and economic growth has suffered,” and specifically promised to “amend the Code of Criminal Procedure and related laws to affirm the principle that ‘Bail is the rule and jail is the exception.”

Ironically, the Prime Minister, who is expected to be aware of legal principles and Constitutional rights as well as global practices, himself targeted this very promise.

In an election speech on April 9, 2019 he said, “The Congress manifesto is the document anti-India forces were waiting for. It made terrorists very happy because it says, bail is rule and jail is the exception. I was shocked to read this. But when I saw the recounting minister who headed the manifesto committee I was not surprised. After all getting bail is important for his own existence. And do not forget his bosses are also out on bail on tax fraud.”

In several other speeches during the 2019 campaign Modi repeatedly attacked the principle making claims such as, “it is a conspiracy to weaken the veer jawans, it would give the rapists free hand, those who attack your sisters and daughters will not be put in jail anymore,” and so on.