If the courts cannot uphold the presumption of innocence by providing a trial, they do not have the legal or moral authority to imprison a person as a pre-trial punishment.
If the courts cannot uphold the presumption of innocence by providing a trial, they do not have the legal or moral authority to imprison a person as a pre-trial punishment.
The law on bail and habeas corpus was the result of atrocities committed on the common citizen by those in power. This law should be considered as an aspect of natural laws against those accused of atrocities and crimes. These laws protect people unequal in power and authority.
Justice VR Krishna Iyer, a keen social thinker, worked to eradicate this inequality through his politics, policy pronouncements and juristic legacy. This earned him the Padma Vibhushan. In his famous statement, 45 years ago, as a result of his years of efforts in the defense of personal liberty balchando The case which may be considered as the Great Charter of India (Magna Carta), “the substantive rule may perhaps be held as bail, not prison.”
data | Delay in justice: 1 crore cases pending for more than 5 years, 76% prisoners are under trial
After the pandemic, we have heard of the Supreme Court and the Hon’ble Prime Minister about how many people are suffering Undertrials in jails across India, Addressing the All India District Legal Services Authorities on July 30, 2022, the Prime Minister mentioned that poor undertrials were jailed for years, and it is the duty of these officers to take appropriate steps to bring them to justice. Lift.
‘Process is punishment’
Former Chief Justice of India NV Ramana recently echoed the views of Malcolm Feeley, professor of law at Berkeley, that “process is punishment”. In 1979, Prof. Feeley found that both the prosecution and defense counsel agreed that the pre-trial process alone was sufficient to teach the accused a lesson.
The criminal justice system is the guardian angel of the personal liberty of the citizen. This is the door of justice. Despite decades of articulating the constitutional values of life and liberty enshrined in Article 21, we only see the situation worsening.
In 1987, the Law Commission recommended increasing the ratio of judges per million population from 10.5 to 107 by 2001. Sadly, this ratio was a very low 21 in 2021. The number of undertrials was a staggering 4.27 lakh, with many thousands more. The convicts are awaiting the hearing of their appeals. The judge-to-prisoner ratio is appalling, the speed at which trials or appeals are disposed of, and a speedy solution to this problem is nearly impossible. A number of special courts have been set up to expect and justify speedy trial. Yet the criminal justice system is crumbling.
This year a bench of Supreme Court Justices Sanjay Kishan Kaul and MM Sundaresh expressed concern about the slow pace of disposal of appeals against convictions before the Allahabad High Court, which would take 35 years at the current rate of disposal. Meanwhile, the convicts would have spent time in jail without bail.
The deprivation of personal liberty at the pre-trial and post-convict stage is a matter of grave concern. Courts struggle to clarify criminal case backlog Which is now a staggering three crore, and there are around 12.5 lakh appeals before the appellate courts.
Adding to this catastrophic condition is the continuation of the arrest, in which, on account of “twin conditions” (ie the condition of being satisfied that there are reasonable grounds to believe that the accused did not commit the offense before being granted bail; and that he is on bail). while he is not likely to commit the offence), the accused is denied bail. The last time twin situations were weaponized was in the 1990s under the Terrorist and Disruptive Activities (Prevention) Act. (Tada). in the constitution bench Kartar Singh (1994) observed:
“It is true that on several occasions, we have come across cases in which the prosecution has invoked the provisions of the TADA Act with the aim of denying bail to persons who have been unfairly accused and in certain occasions when the courts are inclined to grant bail. In cases registered under common criminal law, the Investigating Officer invokes the provisions of the TADA Act to circumvent the authority of the courts. Such invocation of the provisions of TADA in cases, the facts of which do not warrant, may be invoked by the police under the Act. There is nothing but sheer abuse and abuse.”
Offenses under TADA were punishable with imprisonment for a minimum period of five years to a maximum death sentence. However, it now applies to offenses punishable with a minimum fine of up to seven years, for which the general rule is either not to arrest or to grant bail. In this context, recall the words of the late Arun Jaitley, as the Leader of the Opposition in the Rajya Sabha, in the context of the attempt to introduce twin conditions in the bail provisions in the Customs Act:
“You have bought in a disproportionate provision. You don’t need a hammer to kill a fly, and therefore, a provision like this which you said should not apply to terrorists also, now you are saying that these provisions will apply in custom offences. Once you do it in customs offences, in every economic offence, it will start to apply. You can’t give Indian business any better advice than this, don’t invest in India because if you do, it’s going to have consequences. Please consider this seriously.”
presumption of innocence
In a year as we celebrate the 75th anniversary of Independence, it is imperative that we dedicate ourselves to Justice Krishna Iyer’s rule of “No Jail, Bail”. The real weapon of the criminal justice system is the process Trial and Conviction. This process is in line with the notion of human rights and innocence, a rule deeply rooted in Indian jurisprudence and society.
Given the situation in which the courts have found themselves, the only solution to indefinite imprisonment is the immediate release on bail of those who await their trial or the hearing of their appeals. To fight against this disease, it can be called a medicine of bail. If this is not done, the citizens will be at the mercy of the state and Their perception of guilt, and the principle of the rule of law, would be in jeopardy. It is time for the Supreme Court to direct the release of prisoners, as was done in TADA cases. This would do away with the need to determine whether the accused is entitled to books like ghar ka khana, a sipper, a straw, books. World of Jeeves and Wooster Save precious time in prison or medical treatment, and for your primary purpose, tests.
It is true that amendments have been made to provide for compulsory bail for undertrials if they have completed half their sentence. However, it is time to re-examine whether it is clear that the trial will not be completed during such time limit, they should wait for the completion of half the term of their potential sentence.
Bail can be denied only in situations of non-compliance with the triple test (ie absconding, molestation, obstruction), or if he is a habitual offender, or if there is an imperative need for investigation. decide in Satender Kumar Antilo Case (2022) is a step in this direction. But without strict implementation, all these efforts will be in vain.
In Arnab Goswami’s case (2020), Justices DY Chandrachud and Indira Banerjee, in a scholarly demonstration of the evils of the system, said that courts must be vigilant
That the criminal law does not become a “weapon” to harass citizens. He looked intently:
“As judges, we would do well to remind ourselves that it is through the means of bail that the fundamental interest of our criminal justice system in preserving the presumption of innocence finds its most eloquent expression. is a serious expression of humanity.”
If the courts cannot do justice to the presumption of innocence by providing a trial, they do not have the legal or moral authority to imprison a person as a pre-trial punishment.
, Amit Desai is Senior Advocate.,