The Law Commission of India [Commission] has released its 268th Report titled "Amendments to the Criminal Procedure Code, 1973 - Provisions Relating to Bail". The Report has been in the pipeline for over a year and has provided a draft Criminal Law (Amendment) Bill 2017 focusing on making changes to the provisions on arrest and bail throughout the Criminal Procedure Code, 1973 [Cr.P.C.]. However, the minutes of meetings and consultations between the contributors are not available. Chapter Eleven contains recommendations covering thirteen broad areas. I briefly summarise these below:
1. Arrest: Amend Section 50 Cr.P.C. to require police officers inform arrested persons of the reasons for arrest in a language she understands.
2. Statutory Bail and Remand: Courts should not authorise remand to custody routinely and examine the case diary [Section 172 Cr.P.C.] thoroughly. Judges must not accept blanket statements that remand is necessary as "accused may be able to give further information". They must enforce the rule that Supplementary Chargesheets [Section 173(8) Cr.P.C.] are filed only to add information subsequently available, to prevent delays. Specific suggestions are made in respect of Sections 167 and 309 Cr.P.C. [the two provisions authorising remand as per the Commission, which is, in fact, incorrect as it ignores Section 209 Cr.P.C.]. For Section 309, amendments are suggested to require judges ascribing reasons for denying bail during trial. Section 167 is sought to be amended for excluding the period an accused spends outside the actual custody of the police from calculations.
3. Conditions for Bail: Bail conditions must consider the socio-economic position of the person and must not be unduly onerous. Courts are encouraged to look beyond financial considerations to enforce appearance. The Report says "bail must be granted subject to the least restrictive conditions to ensure the appearance of the person accused of an offence and the safety of the community", and emphasises that pre-trial detention is exceptional.
4. Modifying Classifications of Bailable and Non-Bailable Offences: Recommendations that there should be correlation between the term of imprisonment and classification of offence [see here for a discussion on the Blog about this issue].
5. Anticipatory Bail: Recommends the proviso to Section 438 Cr.P.C. be retained [contrary to Report No. 203 of the Commission]. Suggests a more careful approach towards granting anticipatory bail, and that it must be made available for a limited period of time, with every order of grant or rejection being accompanied by reasons.
6. Bail in Economic Offences: Economic offences are "crimes which imperil the nation's security and governance" and a stricter approach is recommended while deciding the issue of custody here. The Report says "all forms of economic offences which include tax evasion, customs offences or bank fraud" should be dealt with strictly and amendments are suggested to make bail harder.
7. Special Laws: The Commission suggests that courts must prevent release of persons on bail in special laws on 'technicalities' - with the NDPS and terrorism related offences highlighted.
8. Modification of Sections 436 and 436-A Cr.P.C.: Recommends amendments to unambiguously reflect that bail is a matter of right which must be communicated to arrested persons. A fresh scheme is suggested for Section 436-A to decide release of persons suffering lengthy pre-trial detention.
9. Centralised Database and Electronic Tagging: Considers the database necessary to confirm criminal antecedents but posits caution about the introduction of Electronically Monitored Bail.
10. Public Prosecutor and Victims: Victims must be given an opportunity of being heard at the stage of bail itself and be informed when release on bail is imminent. 'Treatment of Victims' should be a principle governing bail decisions, and a 'Victim Impact Assessment Report' may be called for where offences are of a particularly grave of heinous nature. The Commission also recommends adopting the check-list model of the UK Crown Prosecution Service.
11. Risk Assessment: Risk-assessment is a technique to help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and and community safety. Principles governing these decisions are suggested by the Commission.
12. Exceptions: Absolute restrictions on grant of bail are uncalled for, suggesting grant of bail where grave circumstances exist - for instance, the arrested person suffering from life-threatening disease for which custodial treatment is impossible.
13. Prison Infrastructure: Recommendation to overhaul the "crumbling prison infrastructure and system". One suggestion is to release the under-trials that currently crowd these prisons, subject, of course, to a proper evaluation of relevant factors.
The Report is a curious creature reflecting a myriad set of concerns, and ultimately does little more than scratch the surface of an extremely problematic area in the Indian criminal process. I make two sets of comments, then; first addressing the Report and what it says, moving on to all that it misses.
The Report and Amendment Bill
The dissonance between recommendations in Chapter Eleven of the Report and the draft Amendment Bill annexed is striking. A paragraph is spent recommending amendments to Section 309 Cr.P.C. and yet no provisions reflect this in the annexed Bill. The recommended amendments to Section 50 Cr.P.C. do not find a mention anywhere, nor do the suggestions about allowing a victim to contest grant of bail and incorporating a requirement for 'Victim Impact Assessment' Reports. The Bill suggests heightened scrutiny for granting bail in 'economic offences' without ever explaining the term. It would seem as if the Bill was never discussed between the members and consultants. Having access to the minutes of the Commission would have helped ascertain this better.
The recommendations do not reflect an eye on how issues of arrest and custody are being decided in the district courts, which are the sites of these battles. For instance, recommending 'reasons' of arrest be communicated under Section 50 Cr.P.C. doesn't tell us how that happens. Does it entail handing over a copy of the FIR? Must a formal application be filed for securing these reasons? [In Delhi at least, I have seen applications being required for supplying a copy of the FIR under Section 50 Cr.P.C.]. In situations of arrest and detention, the balance must tilt in favour of bright line rules over vague standards which can be clearly enforced without debate, and the Commission does not follow this principle with any consistency.
Similarly, when it comes to statutory bail and Section 167 Cr.P.C., the Commission tells us about the problem of detaining undertrials and yet the only amendment is towards strengthening the rigours of custody. Having noted the lack of quality legal assistance [or any legal assistance], the Commission does not touch upon the problems caused by requiring detained persons file an application to secure statutory bail. Considering the increased scrutiny the Commission demands of courts, this would have been an obvious method to help enforce compliance with the provision. Instead, the focus remains on monetary requirements and other conditions.
Finally, a word on the 'economic offences' ghost that continues to haunt the present government. The suggestions are in line with the consistent rhetoric that tells us that 'economic offences' are akin to the plague in terms of their ability to harness devastation for the security of the Indian republic. While that rhetoric helps hammer propaganda, it does not work with the law, especially when it comes to depriving persons of their liberty. 'Economic Offences' is a horribly vague term, spanning potentially the entire gamut of offences having anything to do with a wrongful deprivation of property. Surely trespass on house property doesn't threaten our borders the same way financing terrorism does?
Missing the Forest?
The Report not only misses small, technical issues, that are currently affecting the process of bail, but it also misses huge problem areas that one would consider a body like the Commission to be uniquely able to address. One technical issue was discussed in great detail on this blog before through a series of posts - that of reversing burdens during bail hearings (see here, for the first post in this series). This is a problem endemic to 'Special Laws', where all the Report has to offer is a rebuke to courts for releasing persons on technicalities. Similarly, no mention is made about the issue of an accused having a right to access materials upon which a remand request is made before courts. while the CBI continues to deny even copies of applications seeking a remand to custody. Another technical issue is that of remands to custody between stages of completed investigations and taking cognizance - where the latter is contingent on grant of sanction for instance. With the continuous din of criticism on delays in securing prosecutorial sanction for public servants, and the general opprobrium that the government projects towards corruption, one would have thought this issue merited some debate.
The big issue which I think the Commission fails to discuss was how pre-trial detention is actually seen as punishment in a system where eventual convictions are secured only after enormous delays. Vrinda Bhandari had written about this once (see her paper here). Her comments about pre-trial detention being punitive are quite accurate and one can visit district courts anywhere for a while to experience it. Prosecutors press for custody arguing retributive logic rather than the possibility of a person being a flight-risk. Victims cite their plight as reasons for denying bail. Judges encourage detention to be used as a bargaining chip to force an accused into plea-bargaining or extra-judicial agreements for quashing prosecutions. These are serious issues, and depending on where you stand are either huge problems or ingenious solutions that the criminal process has developed to address the burgeoning backlog. Yet, lamentably, there is not a whisper of this anywhere in the Report.
Conclusions - No Reform in Sight?
News coverage for the Report has hardly been forensic till now, but displays a degree of optimism. In the true spirit of this blog, I conclude this optimism is definitely misplaced. It would be misleading to label this Report as batting for 'reform'. It is, frankly, conservative, and only shifts to the front foot while facing run-of-the-mill deliveries. It would be unfortunate if the annexed Amendment Bill is tabled in the upcoming session of parliament without changes. It would be a tragedy if it becomes part of the statute books in its current form.