Bail is the rule, so why are so many Indians in jail?

In a nutshell: Aryan Khan, son of film star Shah Rukh Khan, was arrested for allegedly using narcotics and narcotics, though none of them were recovered. Illegal substances were allegedly recovered from persons linked to Aryan Khan, who were allegedly carrying such substances with him in conspiracy. Surprisingly, the prosecution was represented by an Additional Advocate General of India. Despite one of the country’s most senior law officers refusing to grant bail to a 23-year-old man with no criminal background, prosecutors—surprisingly, given current trends—appear to present no solid evidence on the basis of failed in Whose bail should have been rejected.

Aryan Khan was produced before the Metropolitan Magistrate upon his arrest. This was his first contact with the criminal justice system. The magistrate was to determine whether there was any reason to keep him in custody. However, this court rejected Aryan Khan’s bail plea on technical grounds. The principles of ‘substance over form’ and ‘process in service and advance of substantive justice’ cannot exist for the prosecution and that court. When a sessions court was approached, this court also – without examining whether the prosecution’s presumptions and allegations have any relation to reality, in a mechanical manner that has clearly become the norm – acted as a mouthpiece and denied him bail.

Aryan Khan’s case is different. It is not an outside thing because a person has been arrested and detained without any reason. It is different in that a person arrested and detained without any reason was granted bail in just 27 days. Most people who find themselves in similar situations end up in prison for years (as is usually the case) before getting bail or being acquitted. It is significant that in 2020, only 44.1% and 35.6% of all prosecutions were convicted for serious crimes such as murder and kidnapping, for which arrest is warranted (Crime in India: 2020, National Crime Records Bureau).

Although sporadically, the Supreme Court and High Courts across the country have frequently reiterated the ‘jail no bail’ rule. A court is bound to grant bail unless it has reason to believe on the basis of evidence that: a) the accused will influence witnesses, tamper with evidence, or otherwise comply with the law when released on bail. will fail the process; and/or, b) a conviction is probable and the accused is also likely to abscond to avoid possible punishment.

While applying this second test, the courts use ‘judicial discretion’ to deny bail on the ground that the allegation made against the accused amounts to a ‘grave offence’. In practice, courts focus on the gravity of the charge leveled and ignore the lack of evidence to support that charge, as well as the absence of evidence to suggest that the accused, if released on bail If so, he shall attempt to thwart the process of law and/or sue for escape.

‘Judicial discretion’ has enabled continuous imprisonment without trial to accused persons and mechanical denial of bail on the ground of ‘gravity of the (alleged) offence’, ignoring the fact that the prosecution has made its arguments against granting bail. supported or not.

Judicial discretion, thus, works as a fig leaf to cover up injustice in practice.

Interestingly, in Joginder Kumar v State of Uttar Pradesh, the Supreme Court observed that the power to arrest someone is the main source of corruption within the system and that nearly 60% of arrests are either unnecessary or unreasonable. Given our collective and (unfortunately for some) life experience of law enforcement agencies – political, financial or otherwise – arresting people with little or no evidence, these Supreme Court observations demonstrate a mastery of silence. We do.

Under the reality of an executive generally demonstrating the innocence of the law with obedient prosecution (we would also like to take this opportunity to demonstrate our mastery of mitigation), our subordinate courts let us down many times. Huh. Our courts are meant to answer the question of ‘quis custodiate ipsoces custods’ (who will guard the guards), but we have a judicial system where checks and balances are to be enforced by magistrates and sessions courts. are largely evident from their absence.

Aryan Khan’s 27-day custody is a minor symptom of the strangulation that the long arms of the law have on us. The rule of law and the primacy of individual liberty have been stipulated in the Constitution as a guide for the courts to discharge their functions, but have all been replaced with subordination to the action of the State.

We must rethink the way our justice system has been distorted to make prison, not bail, the norm. We should also revisit the writings of those who composed the Indian Constitution. To take inspiration from BR Ambedkar: If we are a free people then what is the value of freedom to our country?

Justin M. Bharucha and Sonam Gupta, respectively, are Managing Partner and Partners at Bharucha & Partners