Originally Published 2011-11-15 00:00:00 Published on Nov 15, 2011
The very day a trial court in India, New Delhi to be precise, denied bail to the accused in the 2-G scam case, another in distant London was awarding sentences to three Pakistani cricketers for match-fixing at the end of an equally much-publicised trial.
Need for re-defining 'bail jurisprudence'
The very day a trial court in India, New Delhi to be precise, denied bail to the accused in the 2-G scam case, another in distant London was awarding sentences to three Pakistani cricketers for match-fixing at the end of an equally much-publicised trial. They compare well at one level while the contradictions between them are also equally striking.

In a way, the judges in the two cases went beyond the pale of law and discussed issues that in the ordinary circumstances would not have been the case. It owed at one level to the large public interest in the court proceedings, influenced as the people were also by the consistent and persistent media coverage of them. At another level, it involved private morals involving public personalities - political and bureaucratic administrators among others in the Indian case, and sports personalities in the other.

"The entire community will be aggrieved if economic offenders who ruin the economy of the State are not brought to book," Judge O P Saini in New Delhi observed, quoting the Supreme Court from the 'Satyam case' and denying bail to seven accused in the 2-G scam. In a near-similar tone Judge Jermey Clarke in London had this to tell the four convicts, including the Pakistani cricketers: "The image and integrity of what was once a game but is now a business is damaged in the eyes of all, including the many youngsters who regarded you as heroes...."

Maybe, the Indian judge had little choice in the matter on the question of granting bail to the 2-G scam accused after the Supreme Court had set the precedent in the 'Satyam case'. The Supreme Court's deeper engagement in the 2-G scam probe involving the Central Bureau of Investigation (CBI) and other arms of the State may have also been a cause for greater caution on the part of lower courts in general. Yet, the issue also relates to larger questions of law, pertaining to 'bail jurisprudence' in the country. If 'economic offenders' as a class may be denied bail, other courts in other circumstances could rule similarly in such other cases in which 'class offences' of the kind might be involved.

As coincidence would have it, exactly two days after Judge Saini had cited the 'Satyam case' precedent, the Supreme Court itself granted bail to the very same accused in the very same case. The Apex Court found merit in the accused in the 'Satyam case' having spent two years and eight months in prison already in a case where maximum punishment, if the accused are convicted, was only seven years. True, some of the accused in the '2-G scam case' have been charged with offences where the maximum penalty is life-sentence, but when Judge Saini cited the Apex Court's precedent, he did not take note of the same.

In judicial terms, the issue of 'bail denial' would then have to be reconsidered in toto and new yardsticks set. Where required, the Legislature, either on its own or at the instance of the higher judiciary, could consider re-writing the Criminal Procedure Code (CrPC) accordingly. Under the CrPC, 'bail denial' is an exception, not the rule. For now however, the judiciary and legal professionals may continue to be engaged in defining and re-defining the constitutional position on 'bail jurisprudence'. Arguing that the grant of bail is a 'right' for any accused other than in specific instances where the law itself has laid down the conditions for denial, some legal luminaries have linked it to the 'fundamental right to Liberty' under Article 21 of the Constitution.

The relevant provisions of the CrPC set out situations in which the accused could be denied bail. Being an 'economic offender' is not one, per se, unless coupled with such other CrPC provisions about his/her influencing witnesses. Thus the question emerges: Does by belonging to a particular class of persons such as 'economic offenders' be termed mean that an accused would be falling under the category of 'reasonable restrictions' in the interpretation of Article 14 ('Equality before law and the equal protection of the laws'), as laid down by the Supreme Court (Khyerbari Tea Co vs State of Assam, 1964). Subash C Kashyap points out in the 'Concise Encyclopaedia of Indian Constitution' and citing an earlier verdict of the Supreme Court of 1954, "the harsher the restriction, the heavier the onus to prove the reasonableness" (Saghir Ahmed vs State of Uttar Pradesh).

It is another matter the court in its wisdom has not defined the phraseology, 'reasonable restriction'. The dynamism attaching to the absence of 'Definition' (which ordinarily forms the first chapter of any piece of legislation) is understandable and appreciated in context - and so should be the application of the terminology (State of Madras vs V G Rao, 1952, Golak Nath vs State of Punjab, 1967). It is thus that the Supreme Court has left another much cited court-constructed terminology, 'basic structure of the Constitution'(Keshavananda Bharati vs State of Kerala, 1973) undefined, to be able to provide for exigencies that the Founding Fathers or even the pronouncing judges might not have been able to foresee and foretell.

Maybe, the higher judiciary should take the initiative in the matter of having the law laid down, according to the evolving times, as seen fit by the court(s).The court has done so in the case of the appointment of CBI Director, Chief Vigilance Commissioner and a host of other instances. On a crucial issue like the imposition of President's rule in any State of the Union and/or the dissolution of the State Assembly concerned, the Apex Court has redefined the law of the land through the verdict in the 'S R Bommai case', 1994.

While Parliament has neither contested nor taken the initiative in attesting or opposing the court-set procedure in the matter, the Executive has complied with the same, without contesting it in any way. These pertain to subjects falling under the 'Union List', whereas bail jurisprudence, when it comes to application, can throw up issues and concerns, again based on the facts and circumstances of individual cases, where various High Courts may have differing views to offer.

Any reversal of the law, as laid down and enforced at present, could cause administrative complications, for which alternative arrangements would have to be found. The increasing strength of under-trials owing to the denial of bail would mean more jail-space would have to be found to accommodate them. Any failure on this count could bring the enforcement of criminal justice all across the country to a virtual standstill. There are fewer judges in the employ of the State than the levels required for quick dispensation of justice. The facilities available to them are abysmal in most cases and abominable in some. To add to the burden of the system could cause complications for which the community too may not be prepared for.

It was the late Mohan Kumaramangalam, a seasoned lawyer himself, who coined the phrase, 'committed judiciary' in the early Seventies. He mentioned it in the context of the judiciary in the country having to understand the social spirit and the commitment of the Executive and the Legislature in piloting and passing laws aimed at serving the common good. The current phase of judicial activism in the country has to be seen in the context of 'TV/IT era', where news and views have begun influencing the people as never before. It is also in this background all four pillars of democracy, namely, the Executive, Legislature, Judiciary and also the Press/Media, need to revisit 'reasonable restrictions' in context - and not stopping with accused in criminal cases.

As we can recall from relatively recent living memory, so much was made out of the 'Lakhubhai Pathak case', when an incumbent occupant of the highest political office in the country, Prime Minister P V Narasimha Rao, was arraigned before a criminal court only a decade and more ago. Yet, his acquittal by the trial court was also among the least reported events of the Nineties - and even less recalled, since.

(The writer is a Senior Fellow at Observer Research Foundation)

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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