Call for Submissions: National Law School of India Review [Volume 37(1)]

[This is call for submissions issued on behalf of the National Law School of India Review] 

National Law School of India Review

National Law School of India University, Bengaluru           ISSN No: 0974-4894

Call for Submissions – Volume 37(1)

Submissions for Volume 37(1) of the NLSIR Journal

The National Law School of India Review (NLSIR) is the flagship student-edited law review published by the National Law School of India University (NLSIU), Bengaluru. It is a bi-annual, peer-reviewed journal with the unique distinction of being cited multiple times by the Supreme Court of India, most recently in Union of India v M/s Mohit Minerals. NLSIR has also been cited by courts abroad, such as the High Court of South Africa.

NLSIR is a generalist law review that aims to:

1. Publish scholarship of the highest caliber in Indian law.

2. Publish comparative studies that yield unique insights for the development of Indian law.

3. Promote legal scholarship with respect to India and the broader Global South.

4. Promote deliberation on issues within the legal profession, the government, academia, industry, and civil society.

5. Promote quality legal writing by law students and early-career legal academics.

The NLSIR Editorial Board is happy to invite original, unpublished manuscripts for consideration for the upcoming Volume 37(1) of the Journal. The deadline for submissions is 2nd February 2025. We will not be able to accept any open submissions for Volume 37(1) after this date.

Submission Guidelines

As a general rule, all submissions should conform to NLSIR’s mandate and aims and must have some relevance to Indian law. Submissions may be made under any one of the following categories:

1. Long Article (5,000 to 10,000 words): Submissions under this category are expected to engage with a topic and existing literature comprehensively, and offer an innovative reassessment. Purely theoretical pieces, e.g., pieces on jurisprudence or legal philosophy are also welcome.

2. Essay (3,000 to 5,000 words): Submissions under this category, while similar to Long Articles, are expected to be more concise and targeted in issue identification and argumentation.

3. Legislative/Case Comment (2,500 to 5,000 words): Submissions under this category are expected to critique a contemporarily relevant judicial pronouncement or legislative measure.

4. Book Review (2,000 to 3,000 words): Submissions under this category are expected to engage with a recent book that is concerned with one or more legal issues. 

Please note that word limits are exclusive of footnotes. In compelling circumstances, the NLSIR Editorial Board may be flexible with respect to the word count depending on the quality of the submission. Please refer to our submission guidelines for more information.

Submission Process

All submissions must be made via the NLSIR Digital Commons Repository, by creating an account here. For further instructions and clarifications for submissions on the Platform, please refer to this guide. We do not accept submissions over email. We endeavour to revert to authors with the first round of editorial review within 4 weeks of submission.

Additional guidelines:

1. Please ensure that your submission is made as a Microsoft Word document (.docx).

2. The manuscript should be anonymised and should not contain any personal identifiers (e.g., author name, institutional affiliation, personal acknowledgements, etc.).

3. Manuscripts should be accompanied by a cover letter.

4. Manuscripts should be accompanied by an abstract of around 150 words.

For any queries and concerns, please contact us at mail.nlsir@gmail.com or visit our website.

National Law School of India Review

ONLINE

Submissions for NLSIR Online

NLSIR Online was launched as a companion blog to the NLSIR journal in 2018. The goal of NLSIR Online is to provide a platform for concise and timely academic commentary on contemporarily relevant issues in Indian law. NLSIR Online mirrors the mandate of the journal. We welcome submissions on all areas of the law, including case comments, interdisciplinary analyses, comparative studies, etc.

NLSIR Online Submission Guidelines:

1. Submissions should be between 1,500 and 3,000 words approximately. However, we are flexible with the word count depending on the quality of the submission.

2. The manuscript must be submitted via this Google Form. Current students at NLSIU, Bengaluru must submit their manuscripts via this separate form.

3. Manuscripts must be submitted in a .docx (Microsoft Word) format.

4. Manuscripts must not contain any personal metadata or identifiers (e.g., author details, institutional affiliation, acknowledgements, etc.).

5. Co-authorship is permitted.

6. Submissions must be original and must not be under simultaneous consideration for publication on any other platform.

7. All references must be hyperlinked.

For additional details, please refer to the detailed NLSIR Online Submission Guidelines.

All manuscripts submitted to NLSIR Online undergo a round of review by the NLSIR Editorial Board. We are committed to reverting to authors with a decision on publication within two to three weeks. We invite submissions for the blog on a rolling basis, and do not have fixed submission deadlines for it.

For any queries and concerns with respect to NLSIR Online, please contact us at nlsirevonline@gmail.com or visit our website.

Guest Post: Reflections on the High Court's Judgment in Fahad Shah's Case

(This is a guest post by Rajyavardhan Singh)

A recent post on this blog by the editor argued that the Supreme Court in Union Territory of J&K v. Peerzada Shah Fahad had erred in declaring the J&K and Ladakh High Court’s judgement (“Fahad Shah”) per incuriam merely for referencing the "clear and present danger" test from Schenck v. United States (“Schenck”) in the context of bail under Unlawful Activities Prevention Act, 1967 (“UAPA”). It argued that the High Court in Fahad Shah did not misuse Schenck to assess free speech so as to render it per incuriam, but instead adapted it to set a threshold for justifying arrests and detention under UAPA. Further, it criticised the Supreme Court’s dismissal as potentially hindering other courts from considering valid reasoning.

Reading the analysis led me down a fascinating rabbit hole, exploring a rather distinct yet related question: Whether the invocation of the "clear and present danger" doctrine was normatively sound in this context?

Upon careful perusal, I submit that the High Court's reasoning suffers from two interconnected flaws that extend beyond the mere citation of foreign precedent. First, it commits a false equivalence by conflating a doctrine specifically designed for post-facto speech restrictions with the preventive nature of the UAPA, thereby misaligning the temporal and causal requirements. Second, and more problematically, it attempts a flawed transposition of American free speech doctrine into an Indian anti-terror statute, disregarding not only the Supreme Court’s deliberate rejection of such transplants but also the carefully calibrated evolution of domestic anti-terrorism jurisprudence.

1. False Equivalence

The High Court's invocation of the "clear and present danger" test in interpreting Section 43D(5) of the UAPA marks a significant departure from the legislative intent of the statute. While Sekhri contends that the court merely borrowed evocative prose from Schenck to express a proximity requirement for arrests, this interpretation understates the conceptual confusion such borrowing creates. Although he is right in observing that the High Court was "crafting an idea to address a problem using remnants of old concepts from different contexts," the Court's seemingly harmless transplantation nonetheless obscures a fundamental category error.

For what must be understood is that the "clear and present danger" test, even when repurposed, carries with it specific analytical assumptions about causation and imminence that are fundamentally at odds with the preventive nature of the UAPA framework. As evidenced in paragraph 31 and 32 of the High Court's judgement:

"31. The legislative intent behind s. 43D (5) and its proviso was to ensure that those who were a “clear and present danger” to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released. It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time.”

32. "We hold, that the investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of 'clear and present danger' of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society." [Emphasis mine]

This borrowed standard implicitly requires a degree of temporal and causal proximity that the UAPA deliberately eschews. When the High Court states that authorities must "justify the arrest on the anvil of 'clear and present danger' of the accused to society at large" it imposes a reactive paradigm on a preventive statute. This, I submit, is not merely a semantic sleight-of-hand—but much rather represents a substantive reconfiguration of the UAPA's operational logic. The specific importation of Schenck's framework introduces evidentiary and temporal requirements that could effectively nullify the UAPA's preventive capacity, particularly in cases involving long-term planning or preparatory acts.

This is precisely why the UAPA deliberately moves away from such immediate temporal requirements, allowing intervention based on reasonable grounds even when threats aren't imminent.

2. Flawed Transposition

The High Court's use of Schenck's language to express established principles about justified arrests overlooks the dangers of decontextualised legal borrowing. While Sekhri quite rightly notes that "there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past" so as to render it per incuriam, nevertheless I argue that the manner of citation matters. Otherwise, it risks oversimplifying the nuanced jurisprudential reasons why Indian courts have rejected the "clear and present danger" test in cases like Babulal Parate v. State of Maharashtra, State of Madras v, V.G. Row and more recently in Arup Bhuyan v. State of Assam.

Importantly, the High Court's judgement does more than merely reference Schenck; it attempts to transpose a specific legal test designed for post-facto speech restrictions into the realm of anti-terror legislation. This, in turn, creates two fundamental problems. First, it muddles the distinct jurisprudential frameworks governing speech restrictions and terrorism. Second, it disregards the Supreme Court's careful development of native doctrine around preventive detention, which has evolved to balance security imperatives with constitutional rights in India's specific context (As Shastri J. emphasised in V.G. Row, India's constitutional scheme demands "different techniques and approaches" that account for our unique security challenges).

The flawed transposition becomes even more apparent when we trace how the borrowed test would operate in practice. Under Schenck, the "clear and present danger" framework was designed to evaluate whether speech had sufficient proximity to harm to justify restriction. This required courts to analyse: (1) the immediacy of potential harm, (2) the direct causal link between speech and danger, and (3) the substantive likelihood of the feared outcome.

When the High Court attempts to transpose this framework to UAPA arrests, it reveals both the appeal and limitations of such doctrinal borrowing:

First, while the "clear and present danger" test might seem useful for cases like Mr. Shah's, where a significant temporal gap exists between alleged acts and arrest. It creates an impossible ‘temporal paradox’—requiring authorities to show a "present" danger for actions specifically aimed at preventing dangers from becoming "present." This framework might work when questioning decade-old publications but becomes incoherent when applied to UAPA cases more broadly. While the High Court's instinct to question the necessity of arrest for historical acts is sound, importing Schenck's test unnecessarily complicates what could be a straightforward proportionality analysis.

Second, even in cases involving journalistic activities, the causal chain analysis from Schenck proves problematic. The High Court's attempt to require a direct link between past publications and present security threats, while protective of press freedom, fails to account for how written content might contribute to security risks over time through gradual radicalization or by providing operational intelligence to hostile actors. The "clear and present danger" framework's insistence on direct causation could blind courts to these more subtle, long-term security concerns while offering little additional protection against arbitrary detention that existing proportionality standards don't already provide.

Thus, while the High Court's judgement admirably attempts to protect against arbitrary detention for dated allegations, its choice of doctrinal tool creates more problems than it solves. Rather than importing foreign standards without fully contextualising them—especially from reactive contexts to preventive ones—a more effective approach would involve creating guidelines specifically tailored to address temporal remoteness under UAPA. Such guidelines could consider factors like the ongoing relevance of old publications, shifts in context since their release, and the proportionality of current detention. This approach would better serve the Court’s objectives while preserving doctrinal coherence.

To Conclude

Section 43D(5) of the UAPA, while imposing strict conditions for bail, does not override the fundamental requirement that arrests must be necessary and proportionate. In Fahad Shah, the High Court could very well have examined whether the significant temporal gap between the alleged journalistic activities and the arrest met these essential standards (given the decade-long gap between Mr. Shah’s alleged acts and his arrest) without resorting to the analytically incompatible 'clear and present danger' test.

In Union of India v. K.A. Najeeb, the Supreme Court has already established that statutory restrictions like Section 43D(5) cannot displace constitutional safeguards enshrined under Part III in evaluating preventive detention:

18. “It is thus clear to us that the presence of statutory restrictions like Section 43­D (5) of UAPA per­ se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

This approach would have allowed the court to conclude that an inordinate delay between the alleged acts and the arrest, without compelling justification, suggests either a diminished need for preventive detention or an abuse of process—both warranting bail. Such reasoning would not only have led to the same conclusion but also promoted a more principled development of bail jurisprudence under special legislations like the UAPA, ensuring doctrinal consistency.

Fairness and Bail

In July 2022, the Supreme Court delivered what proved to be the the last significant milestone on the law of bail — its judgment in Satender Kumar Antil v. CBI [(2022) 10 SCC 51]. At the time, I had noted that the judgment was quite a mixed bag. On some issues, such as arresting persons and denying bail after completing the investigation, it unequivocally expressed a preference for personal liberty. On others, such as actually laying down clearer guidelines for exercising bail discretion, it did not do much. And it left the subject with a plea to Parliament — forlorn, as it turned out — to think of coming up with a dedicated law on the matter of bail as is prevalent in some other countries (the UK example was cited).

Two years hence, the situation has only gotten worse. It may seem paradoxical to be writing this at a time when the Supreme Court and High Courts are invoking Article 21 to grant bail in cases where trials have been delayed and accused persons have spent years behind bars. That, however, is precisely the point: My wrongful confinement does not magically become concerning after two years, eleven months, and nine days. It was either always concerning, or it is never concerning but simply uncomfortable. 

Once we begin to see this, it is clear that granting bail is not some liberty affirming, constitutionally driven, judicial choice in such instances that we ought to be celebrating. It is a morally (and politically) convenient, and legally hollow, choice, which is perpetuating a jurisprudence of apology driven by the personal beliefs of judges with the text of the law merely a proxy, and not a choice for liberty inspired by a set of rules and political ideals that represent shared beliefs.

But this is really the tip of the proverbial iceberg. The consternation, or celebration, around the outcomes in bail cases takes all the attention and successfully masks the real scandal of procedural unfairness in the bail adjudication setting. What are the hallmarks of fairness, in a processual setting? There is no textbook definition, but it is easy to agree on some basics: (i) fair notice, in that I should know the case I have to answer (ii) an opportunity to be heard to give said answer, and (iii) a guarantee that my case will be dealt with by the same yardsticks as every other case. If even one is absent from the procedural setting, I would argue that such a setting cannot, under any stretch, constitute a fair setting especially when what is at stake is personal liberty.

And yet, we continue to adjudicate bail cases in a manner that almost prides itself in not confirming to the most basic notions of fairness. A person being arrested will almost never be furnished a copy of the First Information Report, or detailed grounds of arrest, or even a copy of the application seeking custody at the time of the hearing. Even when a bail application is somehow filed in spite of not having access to any of these documents, prosecutors and police personnel will either not file any response and rely exclusively on the secret contents of their dossiers and diaries, or object to sharing copies of any responses being filed with the accused. 

With such woeful anchoring on the aspect of notice, being granted with an opportunity of being heard is a mirage for most persons being detained. Almost always the first hearing is a washout since the lawyer has no idea of the case, and getting a hold of the documents will take a few days. At this point, the degree of protection that the law offers to your personal liberty becomes directly proportional to the money that you are willing to pay to lawyers who can secure that liberty. It is settled transformation which, sadly, leaves the vast majority behind. 

Which then brings us to the worst placed facet of the lot - adjudication itself on issues of bail and remand. There are, again, two parts to this. Firstly, there is the content of decision-making, which takes us back to the outcome. In not having guidelines on how courts ought to exercise their discretion on bail and custody, the result is that courts are free to conduct almost any kind of reasoning so long as it fits the remarkably featherlight and self-justificatory standard of exercising judicial discretion 'judiciously'. Secondly, there is the process of decision-making — how many hearings, what all has to be seen / looked at, who all have to be heard, what all must be recorded in the order, etc? 

Somehow, there is even greater flux on this aspect. A bail application may be decided now, or may be listed four months later, and may not be heard on that day citing some administrative difficulty and then be taken up two weeks later. Or a judge may simply conduct a remand hearing at his house in the morning after counsel having ten minutes notice. A court may agree to look at the documents filed by an accused, or may not, or may look at material filed by the prosecution without showing anything to the accused. A victim may be heard, or may not unless the statute prescribes otherwise, or may only be allowed to file written objections. A judge may pass a two paragraph order, or a two page order, but may not share it with the accused until after a few days due to logistical difficulties. Where the judge grants bail there may be conditions, or may not, or the same kind of cases may have different conditions, or different accused in the same case may have different conditions without any explanation. Literally, anything goes.

When we think about the need for a bail law, the conversation naturally glides towards the debates on the matter of outcomes since that is what grabs most public attention. The real need for having such a law is arguably elsewhere, in making the process of bail adjudication fairer for all parties involved. It would be a huge step in stemming the growth of this jurisprudence of apology, and reinforcing a rules-based ordering of personal liberty, victim's rights, and investigative prerogatives of the state. 

Considering that undertrial prisoner population today stands at a jaw-dropping national average of more than 75% of total prison population, there is no other legal reform requiring more attention. It needs work, yes, and it will not brook an easy solution such as simply releasing first-time offenders early. Whichever parliament, or Court for that matter, commits itself to the task, ensures that India's criminal justice system takes a step back from the abyss into which it has been staring for some time now. 

The Supreme Court's Criminal Law Explainers in Just for Rights

[This Blog Post touches upon a sliver of the issues raised in the judgment. For a much fuller discussion, albeit where the author ultimately disagrees with some of the conclusions in the judgment, see here]

In a lengthy and erudite judgment titled Just for Rights Children Alliance & Anr. v. S. Harish & Ors. [2024 INSC 716 ("Just for Rights")], the Supreme Court clarified that the possession of child pornography can amount to an offence under the law, specifically under the Protection of Children from Sexual Offences Act 2012 [POCSO] and the Information Technology Act 2000 [IT Act]. I say clarified, as there was a divergence of opinion on this issue in the High Courts which the Supreme Court has now put to rest.

The facts, then. A man, the Respondent S. Harish, was reported to the Police as his name appeared in the Cyber Tipline Report coordinated by NCRB as someone who may have viewed / downloaded offending content on his phone. An FIR was registered and a chargesheet was filed, but while the FIR was under Section 14 POCSO the chargesheet was under Section 15 POCSO and Section 67B of the IT Act. The chargesheet was challenged before the Madras High Court which quashed the case, and this judgment was challenged before the Supreme Court in Just for Rights.  

The Madras High Court proceeded upon the erroneous view that offences under Section 14 POCSO were involved in ignorance of the chargesheet. Further, it construed Section 67B of the IT Act incorrectly, as it failed to look at the full clause before concluding that Section 67B did not punish watching such content — a finding evidently contrary to Section 67B(b). The Supreme Court could have set aside the judgment on these narrow grounds alone, but it did not, and decided to engage with the High Court's view (taken by some other High Courts earlier) that the mere possession of child pornography content cannot be a crime even under Section 15 of POCSO. 

The issue arose because of the peculiarly worded nature of the provision in question. While the marginal note says "punishment for storage of pornographic material involving child", the clause itself does not per se criminalise only storage. Amended in 2019, the provision states:

(1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable ...

(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished ... 

(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished ... [Emphasis supplied]

What Section 15 did, was dispel any doubts that it was not a strict liability offence. In other words, it did not punish merely being found in possession of offending material. Instead it required the possession to be accompanied by an intention to share or transmit such material for the base offence, and prescribed even higher standards of intention for the other offences under sub-clauses (2) and (3). 

Technically speaking then, a view that mere possession of such material is not a crime under Section 15 was arguably correct. This view is what the Court seeks to address. The analysis begins by drawing upon the legislative history of Section 15 and the POCSO to justify the view that parliament actually intended to criminalise mere possession. I am not so sure. If this was the intention of parliament, nothing stopped it from adopting the clear language of Section 67B of the IT Act, which when juxtaposed with Section 15 POCSO shows what a crime which punishes pure possession can look like. If anything the Court may have dealt with more extensively on how to harmonise these two sets of clauses, with entail not only different procedural regimes but different potential punishments for the same offence. This multiplicity of crimes for the same act is an issue which the Court appears to have left for another day, which will hopefully come soon enough considering just how often the issue is coming up for consideration.

It is the next section, where the Court breaks down the terms of Section 15 POCSO, that it makes its most convincing case to remind us that even statutes which may appear to not create strict liability crimes by criminalising mere possession can, in fact, operate to achieve precisely these objectives.

The late Prof. William Stuntz explained it with his usual lucidity more than two decades ago in the context of federal white-collar crime in the United States, and while he is not cited in Just for Rights it is the same idea which the Supreme Court has turned to. Look at Section 15 again. Sure, it prescribes an intention, but how does one prove such an intention, and more importantly when does one prove such an intention? It is all a matter of inference, in which the key fact would remain the fact of possession. Whether it was 'mere' possession, or 'criminal' possession, would in this reading become a matter for investigation and trial. In other words, where offences prescribe extremely minimal conduct requirements, along with traditional components requiring the proof of a mental element, they create de facto strict liability crimes which give vast powers upon the police to enforce the law and leave the messy questions of proof to trials. 

The justification for having such crimes is usually found in the subject-matter they deal with. Section 15 is no exception, as there is a broad consensus that child pornography is per se without any redeemable value for a harsh legal measure to be in place. The Court in Just for Rights highlighted this, and also highlighted that such an approach is not 'unduly' harsh inasmuch as a person with a sound defence would always have a chance to prove their innocence even if found in possession of the offending content. The discussion, with its multiple examples, should prove helpful for courts and police to apply the section with a measure of fairness.

The SC Order in the Fahad Shah Case

In November 2023, the High Court of J&K and Ladakh passed its judgment in Peerzada Shah Fahad v. Union Territory of J&K. Readers may recall that this judgment concerned a journalist, Mr. Shah, who had been prosecuted for offences under the Unlawful Activities Prevention Act 1967 ['UAPA']. In connection with which he had also been arrested and denied bail.  

The judgment of the High Court was the result of Mr. Shah challenging two orders, one by which charges had been framed against him for offences under the UAPA and the other by which his bail application had been rejected by the lower court. The High Court granted him bail, and also ruled that some of the charges against him, including the most serious UAPA charge, were unsustainable. [The judgment was covered on the Blog here and was also discussed in the press here, here and here].

This judgment was challenged by the Union Territory of J&K and Ladakh before the Supreme Court. The Union, presumably, sought that the bail so granted be denied and that the charges originally framed against Mr. Shah be restored. It appears that, on the first date of hearing in September 2024, the Union took an adjournment. After which the case came up for hearing on 14.10.2024, where the petition was disposed off. The two orders suggest that the Court did not issue any notice to the opposite side, i.e. Mr. Shah, before deciding the petition. 

That a petition was decided without hearing the proposed respondent is not uncommon as many petitions to the Supreme Court are dismissed at the outset as the Court considers no interference is being called for with the lower court's orders. In this case, though, the Court did not simply dismiss the petition. While it held that there was no reason to deny bail and return Mr. Shah to custody, the Supreme Court made a key observation in respect of the validity of the reasoned 25 page judgment of the High Court: It declared that the judgment was per incuriam and shall not be cited as precedent (para 6). In other words, no other court can henceforth rely upon the observations made by the J&K and Ladakh High Court, nor can counsel try to use them in support of their case.

Why did the Supreme Court arrive at such a conclusion? Paragraph 6 of the brief two page order passed on 14.10.2024 states that the per incuriam finding was because the High Court's judgment were contrary to judgments passed by the Constitution Benches of the Supreme Court. To understand which judgments, we must turn to Paragraph 4 of the same order, which extracts submissions made by the Solicitor General. To avoid any confusion I have copied the relevant part below:

"The learned S.G., Mr. Mehta has drawn our attention to the para 28 of the impugned judgment, whereby the High Court has placed reliance on Schenck Vs. United States (249 US 47 (1919) : 1919 SCC Online US SC 62). He submitted that the two Constitution Benches in Babulal Parate vs. State of Maharashtra (AIR 1961 SC 884) and in State of Madras vs. V. G. Row [(1952) 1 SCC 410] and one Three Judge Bench in Arup Bhuyan vs. State of Assam [(2023) 8 SCC 745] have rejected the application of the doctrine of “clear and present danger”, as laid down in the said judgment, i.e., in Schenck Vs. United States (supra), and therefore, the observations made in the impugned judgment would be per incuriam. ..." 

There is no doubt that the Indian Supreme Court does not fully approve of the test in Schenck and that if a High Court relies upon Schenck without understanding its clarifications by the Indian Supreme Court, it is proceeding in error. But underlying all of this analysis is a rather obvious premise: the High Court ought to have been using Schenck for the reasons why the Indian Supreme Court did not approve it, for it to have ever fallen into error. But if it was not using Schecnk for these purposes, there was no problem, because there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past.

Let me explain this further. A judicial decision gives us an answer to a problem, but rarely does it give this answer in a straightforward or formulaic manner. Judges give their answer in ways that can help in future cases, and do so with their unique sense of flourish (or dose of dour). Schenck is one such judgment, in which the U.S. Supreme Court not only decided the problem before it — the validity of the Espionage Act — but did so by providing a test for future courts to decide issues of the legality of similar statutes. Now it is obviously open for future courts to disagree with this old test and come up with their own tests, which is what happens with India's treatment of Schenck. The result is that the test laid down in Schenck cannot be used to decide the kind of problems that it was intended to solve. It does not mean that no court can use the decision to aid its imaginative process of solving other problems.           

To decide, then, whether or not the High Court in Mr. Shah's case had fallen into error in citing Schenck, it is first necessary to determine just what was the problem that it was dealing with. Was the petition testing the legality of any statute on grounds of interference with freedom of speech and expression? It was not. It was deciding a challenge to arrest and detention by a person who had been arrested in 2022 on the basis of accusations against him pertaining to acts done in 2011. In other words, was an arrest in 2022 justified for alleged illegal acts committed in 2011? 

A reading of the High Court's judgment from November 2023 makes it clear that there are only three places in which Schenck, or the idea of 'clear and present danger' which the Supreme Court order cites, are referred to. The first of these is paragraph 28 of the High Court's judgment (which is also mentioned in the Supreme Court's order): 

The charge against the Appellant is basically associated with his right to freedom of speech and expression, which prima facie appears to have gone wrong. In Schenck Vs. United States, the charge against the Appellant was under the provisions of the Espionage Act that impeded the US war efforts against the German Empire in world war I, by mailing letters to discourage conscripts who had qualified to give their service as soldiers against Germany, from joining the US Army. The Appellant sought the quashing of the Espionage Act as it infringed his first amendment right of free speech. Justice Oliver Wendel Holmes writing for the court held “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree”.

The second and third references are not to Schenck, but only to the idea of a 'clear and present danger' at paragraphs 31 and 32 of the judgment — and neither of these have been referred to by the Supreme Court. What do these paragraphs show us? That the High Court did not use 'clear and present danger' as a test to decide the validity of interference with free speech and expression, but as a kind of placeholder to create a new threshold to determine circumstances where arrest and detention would be justified under the UAPA. 

Paragraph 31: " The legislative intent behind s. 43D (5) and its proviso was to ensure that those who were a “clear and present danger” to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released. It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time. ...". [Emphasis mine]

Paragraph 32: "We hold, that the investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of “clear and present danger” of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society. If the investigating agency does not satisfy this Court and is unable to justify the arrest (as warranted in Joginder Kumar) the same would result in the violation of the rights of the accused under part III of the Constitution as adumbrated in K.A Najeeb's case, and the accused may be enlarged on bail. In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case." [Emphasis mine] 

What we have here, is a court crafting an idea for solving a problem with remnants of old concepts from different contexts. And in crafting this new idea the J&K and Ladakh High Court did not simply cite from Schenck, but it turned to a concept which the Supreme Court of India has wholeheartedly endorsed time and against: that a person ought not to be arrested merely because he can, but there must be grounds for an arrest. 

Moreover, it would be a disservice to say that this is an entirely new idea to begin with. Within the Indian context, there were already decisions, by various courts, which stressed upon the need for some proximity between the allegations and the exercise of powers of arrest. All that the J&K and Ladakh High Court did was to express this rationale in different, more evocative, prose. That it did so by bringing to use the prose from a decision which had been disagreed with in a different context, could not be a reason to deprive all other courts from even considering the High Court's reasoning. 

If the the only reason to hold that the judgment of the J&K and Ladakh High Court in Mr. Shah's case is per incuriam is because it decided to adopt the same catchy phrase from a decision which earlier benches of the Indian Supreme Court had disagreed with for different reasons—and I say 'if' because the petition itself may have raised many other grounds, none of which are captured in the order unfortunately—then it appears that the Supreme Court order dated 14.10.2024 has committed a most serious error. 

Guest Post: How Long is Too Long? - On the Maximum Period that an Undertrial Prisoner can be Detained

(This is a guest post by Hany Babu and Surendra Gadling, who have been detained in prison as 'undertrials' since 2018 and 2020, respectively. This piece is being published simultaneously with the Indian Constitutional Law and Philosophy Blog)

Dedicated to the fellow undertrial prisoners languishing in the prisons of India with the hope that the system would sooner than later wake up to their plight; and that one day prisons, if not still obsolete, would at least have become places where those proven guilty are held, and not places that incarcerate those who are presumed to be innocent.

The primary author would like to thank his co-defendants, Arun Fereira and Vernon Gonsalves, for the enriching discussions – stolen at times in the corridors of the court, at times on the drives to and from the court, and at times in the ‘After’ hours; Vernon, for his characteristically incisive remark ‘You need to think more!’ after going through – what I now realise was – a much cruder earlier version of this piece even before BNSS had kicked in; and Arun, whose name may have been among the authors had their Lordships not set him free, for owning the idea that the Code should have more provisions for statutory bail. Needless to say, neither of them is to shoulder the shortcomings of this piece.

Introduction

“How long is too long a period of incarceration as an undertrial for a court to conclude the right of speedy trial is defeated?”

This was a question raised by the Delhi High Court in Mohamed Hakim v. State (NCT of Delhi) 2021 SCC OnLine Del 4623, in the context of grant of bail for an undertrial prisoner. We raise a similar question regarding the maximum period of detention permissible by law for an undertrial prisoner. Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Section that deals with the question of the maximum period that an undertrial can be detained, largely reproduces the language of its predecessor, Section 436-A of the Code of Criminal Procedure, 1973 (CrPC), the clause that no person should be imprisoned for a period exceeding the maximum period of punishment specified for his offence.

This essay argues that the existing law, which allows a person to be detained for a period equal to the maximum period of imprisonment specified as punishment for his offence only serves to legitimise the award of “surrogate punishment” equivalent to the maximum punishment to that person, without conducting trial and determination of the question of guilt or innocence of that person according to procedure established by law. Such a law has no place in the statute book if presumption of innocence is one of the cornerstones of criminal jurisprudence.

Further, if “bail, not jail” were followed in letter and spirit, the question of prolonged pre-trial detention would not arise. In practice, however, the combination of the question of ‘prima facie guilt’ – another principle that goes against the presumption of innocence – and the tripod test of the possibility of the accused tampering with the evidence, influencing witness and / or evading trial, together conspire against the grant of bail. In such circumstances, it is only those who can afford to hire expensive lawyers and knock the doors of the Constitutional Courts who can manage to secure bail. For the rest jail becomes the rule.

In such a scenario an act of balancing is called for. We argue for a judicial reading of the BNSS that will provide us with the framework of finding such a balance.

We set out by drawing a comparison between Section 479 of BNSS and its predecessor Section 436-A of CrPC. It can be seen that far from being an improvement on Section 436-A of CrPC with respect to reducing the period that an undertrial prisoner can be detained, Section 479 of BNSS is more restrictive in its application. Be that as it may, what makes Section 479 of BNSS problematic are certain anomalies we discuss below. We shall first take a look at Section 436-A of CrPC and then go on to Section 479 of BNSS before putting forth our suggestions regarding the maximum period of detention for an undertrial prisoner.

Section 436-A of CrPC

Section 436-A of CrPC was inserted in 2006, as it was found that there were undertrial prisoners detained in jails for periods beyond the maximum period of imprisonment provided for the alleged offence. It may be noted that in spite of this, undertrial prisoners are still languishing in prisons for periods longer than the maximum punishment specified for their offence, as in the case of Dipak Joshi in West Bengal, who came out of prison after 42 years following the intervention of the Calcutta High Court.

Apart from the stipulation that an undertrial prisoner cannot be held in prison for a period exceeding the maximum period of punishment for his offence, Section 436-A of CrPC also has a provision that a person who has undergone detention for a period extending up to one half of the maximum period of imprisonment specified as punishment for his offence may be released if the punishment of death is not one of the punishments specified for the offence in question. In the prison parlance, this provision is referred to as ‘half ground’, and we shall use this term to refer to this clause. Unlike the maximum period of detention, the provision of half ground was not a statutory obligation and was subject to the Court’s discretion after hearing the Public Prosecutor.

In this article we shall be limiting our discussion to offences under the Indian Penal Code, 1860 (IPC) while discussing CrPC and offences under the Bharatiya Nyaya Sanhita, 2023 (BNS) while discussing BNSS. There are twelve offences in IPC for which death is specified as one of the punishments, and these offences were outside the purview of operation of 436-A for the purpose of half ground.

Section 479 of BNSS

Section 479 of BNSS corresponds to Section 436-A of CrPC. Unlike in the case of most sections, where BNSS just copies the CrPC provisions, in the case of Section 479 there are a few changes and considerable additions. There are three sub-sections to Section 479 of BNSS. While sub-section (1) reproduces the contents of Section 436-A of CrPC with some slight modifications and additions, sub-sections (2) and (3) are entirely new. We shall look at each of the sub-sections one by one.

Sub-section (1) of Section 479 of BNSS

In sub-section (1) of Section 479 of BNSS, offences punishable with death and imprisonment for life are mentioned to be excluded from the “half ground.” On our count, there are as many as 75 offences under BNS that have death or imprisonment for life as one of the punishments. While Section 436-A of CrPC excludes only 12 offences of the IPC from the ambit of half ground, BNSS excludes 75 offences from its ambit. If only offences punishable with death were excluded, by our count 16 offences of BNS would have been excluded from half ground.

As per Section 6 of BNS (which is almost a replica of Section 57 IPC), imprisonment for life is to be reckoned as equivalent to imprisonment for a period of twenty years for the purpose of calculating fractions of terms of punishment. So, for the purpose of “half ground,” a person who has been detained for an offence for which imprisonment for life is (and death is not) one of the punishments specified under the relevant law, that person would ordinarily have been eligible to be released on “half ground” after ten years in custody. However, that door is closed for such people under BNSS.

If BNSS takes a tougher view of offences punishable with imprisonment for life, as it considers them to be offences of a serious nature and wants to show no leniency towards persons accused of such crimes, there is hardly any room for argument. However, a look at Section 474 of BNSS (which corresponds to Section 433 of CrPC), which deals with the power of the government to commute sentences, would make us doubt this. As per clause (a) of Section 474 of BNSS, imprisonment for life can be commuted to imprisonment for a term of not less than seven years. That is to say, if you are convicted for imprisonment for life, you may stand a chance of being freed after spending seven years in prison provided you are in the good books of the government of the day; however, for the reasons set out above, if you are detained as an undertrial prisoner you are not eligible to be released even after spending ten years in prison.

So, rather than treating serious offences with iron gloves, BNSS seems to leave it to the whims of the executive rather than to the wisdom of the judiciary. What this implies for hapless prisoners who cannot afford to engage lawyers to file bail applications on their behalf is that pleading guilty and begging for the mercy of the executive in the form of commutation to a term of seven years of imprisonment would be a more attractive option than languishing endlessly in prison as an undertrial prisoner.

Apart from the “half ground,” BNSS introduces what we shall call ‘one-third ground’ for first time offenders. A first-time offender can be released if he has undergone detention for a period extending up to one-third period of the maximum punishment specified for his offence under the relevant law. The parenthetical clause explains that a first-time offender is a person “who has never been convicted for any offence in the past.” Let us not overlook the inappropriacy in using the term ‘offender’ for a person yet to be proven guilty. The possibility of getting bail after having spent one-third of the maximum period of punishment raised the hopes of so many prisoners who have been behind the bars for years. Their hopes were further raised with the possibility of the retrospective application of Section 479 of BNSS following the ruling of the Supreme Court in W.P. (Civil) 406 / 2013, In Re Inhuman Conditions in 1382 Prisons. It is not surprising that they missed the fine print that said offences that have imprisonment for life as one of the punishments are excluded from the ambit of Section 479 of BNSS. (Ed Note: A similar conclusion was made on the Proof of Guilt Blog here).

Sub-section (2): More than one offence and multiple cases

Sub-section (2) of Section 479 of BNSS is a non-obstante clause that says a person who has more than one offence or multiple cases pending against him is not eligible to be considered to be released, neither on the basis of one-third ground, nor on the basis of half ground. Section 436-A of CrPC had no such restriction.

“Offence” is defined in Section 2(q) of BNSS (a replica of Section 2(n) of CrPC). It says “any act or omission made punishable by any law for the time being in force…” As per sub-section (1) of Section 243 of BNSS (equivalent to Section 220 of CrPC), a series of acts connected so as to form the same transaction can lead to more offences than one being committed. Sub-section (3) of Section 243 of BNSS states that if an offence falls within two or more separate definitions by which offences are defined under any law, the person may be charged with each such offence.

Illustration (1) pertaining to sub-section (3) of Section 243 of BNSS says if a person wrongfully strikes another person with a cane, he may be separately charged with and convicted of offences under sub-section (2) of Section 115 (i.e. voluntarily causing hurt) and Section 131 (i.e. punishment for assault or criminal force other than on grave provocation) of BNS. This would mean that on a literal reading of Section 479 of BNSS, a person who strikes another with a cane would be ineligible to be considered to be released on the basis of one-third or half ground even if the person is a ‘first time offender’.

A combined reading of sub-sections (1) and (2) of Section 479 BNSS gives us a peculiar situation. The condition in sub-section (1) that a person should be a first-time offender is applicable only for the one-third ground and not for the half ground. Or, in other words, if you have a previous conviction, you cannot be considered to be released on the basis of one-third ground, but you can be released on the basis of half ground. Well and good. Now consider this: as per sub-section (2) of Section 479 BNSS, a person who has multiple cases pending against him (or even more than one offence against him in a single case) cannot be considered either for one-third ground or for half ground. That is to say, BNSS takes a more considerate view of a person who has a previous conviction than of a person who is yet to be proven guilty but has more than one case pending against him in that the former is eligible to be released on half ground, but not the latter. Does this not eviscerate the presumption of innocence?

Sub-Section 3: A silver lining

Sub-section (3) of Section 479 of BNSS is indeed a welcome addition as it casts a duty on the Jail Superintendent to make an application to the Court to release a person who has completed one half or one-third of the period mentioned in sub-section (1), as the case may be. Under the previous scheme, it was left to the accused to move court. Often the persons were hardly aware of such a provision or would not have the legal support to make such an application.

Applying the Law

Having gone through Section 479 of BNSS, which deals with the maximum period that an undertrial prisoner can be detained, we shall turn to two related issues: (1) How to reduce the number of undertrial prisoners in the prisons? and (2) How to ensure that an undertrial prisoner does not get incarcerated for too long a period? Albeit related, these two questions are distinct, and different steps need to be taken to tackle them effectively.

The ABC of reducing the number of undertrial prisoners

If the number of undertrial persons in the prisons is to be reduced, the three necessary steps are:

A: Avoid arrest unless necessary;

B: Bail to be granted unless circumstances warrant otherwise;

C: Conduct speedy trial.

In spite of the repeated pronouncements of the Supreme Court about the need for the police to be judicious in the use of the power to arrest, BNSS makes only a feeble attempt to strengthen the safeguards offered by CrPC. Sections 41, 41A, 41B, 41C and 41D of CrPC, which deal with arrest, are reproduced and renumbered as Sections 35 to 38 of BNSS. The only additional protection BNSS offers – and what perhaps justifies renaming of the Act as “Nagarik Suraksha” – is the addition of sub-section (7) of Section 35, which stipulates that prior permission of an officer not below the rank of Deputy Superintendent of Police is needed to arrest a person who is infirm or above sixty years of age, for an offence punishable with less than three years of imprisonment.

There are at least more than one hundred offences in BNS (just as was the case with IPC) that have a punishment of imprisonment for a maximum period of less than three years. However, barring roughly half a dozen of the rest are all bailable and non-cognizable offences. Therefore, the introduction of sub-section (7) of Section 35 of BNSS may hardly make a practical difference. Moreover, experience shows that in order to circumvent provisions like those of Section 35(7), police may easily add a Section that provides for punishment of three years or more and may also get away with it.

Going into the issue of grant of bail is beyond the scope of this piece. Some of the recent judgements of the Supreme Court that have upheld the right to life of the undertrial prisoner and granted bail upholding Article 21 as an effective means against the prolonged incarceration and award of surrogate punishment seem to offer a beacon of hope. However, as noted by Abhinav Sekhri in his blog post [‘A curious Constitutionalism’ dated July 19, 2024], it is still as though prolonged incarceration of an undertrial prisoner and the issue of grant of bail are issues only the highest Court has to concern itself with. For those who cannot afford to reach that level, there still isn’t much scope for hope.

The culture of seeking adjournments and postponements are usually cited as the main causes of delay in judicial proceedings. Section 309 of CrPC that dealt with powers of the Court to postpone or adjourn proceedings presents a curious case. The Section said that proceedings in every trial or enquiry should be conducted on a “day-to-day” basis and postponement of the commencement of trial or adjournment beyond the following day is to be resorted to only if necessary, and the reasons for the same have to be recorded. However, postponement of the commencement of the trial for months and years and adjournments of proceedings have become the norm rather than exception. There is also a stipulation that trial in offences related to rape should be completed within a period of two months from the date of filing of the chargesheet, which would be a miracle in our trial courts.

Apart from the time limit of 60 / 90 days for the completion of investigation, CrPC had no time limit specified for the framing of charges, commencement and completion of trial, or the delivery of the judgment. BNSS, on the other hand, sets a time limit of “sixty days from the date of first hearing on charge” for framing of charges in Sections 251 and 263 (corresponds to Sections 228 and 242 of CrPC, respectively) and a period of forty five days for pronouncement of judgment after conclusion of the trial in Section 392 (which corresponds to Section 353 of CrPC). The efficacy of these steps, however, will have to be tested in practice as no remedies are prescribed in the eventuality of these limits not being observed. There is hardly any reason to assume that the time limits introduced in BNSS will not remain a dead letter, like the clause about “day-to-day” trial and the sixty day limit for the completion of trial in offences related to rape, which were part of Section 309 of CrPC; or that Section 346 of BNSS will ensure framing of charges and commencement of trial without undue delay. It has to be underlined that no time limit has been specified as to when “hearing on charge” should commence after the filing of the chargesheet.

In reality, as observed by the Bombay High Court while granting bail to the accused in a POCSO case in which charges were not framed even after five years, once the chargesheet has been filed the case is often kept on the back burner and the investigation agency and the court forgets all about the accused after remanding him to judicial custody. The remand gets mechanically extended from time to time in most cases, without the accused person being produced before the court either physically or through video conferencing. This process goes on for months or even years. In order to curb this, effective checks should be built into the system similar to the statutory bail granted to the accused in case investigation has not been completed within the stipulated time. We turn to this issue in the next section.

How Long is too Long

As we argued right at the outset, a law that states no undertrial prisoner shall be detained for a period exceeding the maximum period of imprisonment specified as punishment for his offence is an anathema to the principle of presumption of innocence, as it only legitimises the detention of the undertrial prisoner to a period equal to that of the maximum period of imprisonment specified as punishment for that offence. It thereby provides for inflicting surrogate punishment on those who are considered to be innocent until proven guilty by procedure established by law. The question, then, is how long a period of incarceration is too long for an undertrial prisoner?

In an ideal world, no person should be punished until proven guilty. And without mincing words let us admit that the label ‘judicial custody’ does not make detaining an undertrial person within the confines of a prisonhouse qualitatively very different from punishment. Nevertheless, setting idealism aside, we may still arrive at a reasonable period for which an undertrial prisoner can be detained by confining ourselves to the four corners of BNSS. In order to arrive at such a figure, we need to turn our attention to another Section of BNSS – Section 474 (which corresponds to Section 433 of CrPC) that deals with the power of the government to commute sentences.

Unlike most other Sections, Section 474 of BNSS is a considerable improvement upon its counterpart, namely Section 433 of CrPC. Sentences can be commuted as given below as per Section 433 of CrPC:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not exceeding fourteen years;
• rigorous imprisonment to simple imprisonment; and
• simple imprisonment to fine.

Section 474 of BNSS offers the following possibilities for the commutation of sentence:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not less than seven years;
• imprisonment for seven years or more to imprisonment for a term not less than three years;
• imprisonment for a term less than seven years to fine; and
• rigorous imprisonment to simple imprisonment.

As is evident from a glance at the above, BNSS takes a much more liberal view with respect to conviction, in cases where the power to show leniency and commute sentences is vested in the hands of the executive. If we consider the arithmetic behind the calculation involved in arriving at the number of years to which terms of sentences of imprisonment are commuted, we can see that it hovers around one third of the sentence. For instance, imprisonment for life is reckoned as equivalent to imprisonment for twenty years for the purpose of calculating fractions of terms of punishments (as per Section 6 of BNS / Section 57 of IPC). So, one third of imprisonment for life is six years and eight months. Similarly, one third of seven years is two years and four months. If after conviction, the term of sentence can be commuted to its one third at the sweet will of the executive, we propose that the same formula can be adopted in fixing the maximum period for which an undertrial prisoner can be detained.

We propose that seven years be fixed as the upper limit beyond which a person in custody as an undertrial for an offence punishable with imprisonment for life or death cannot be detained. Similarly, for offences punishable with imprisonment for seven years or more, the maximum period that a person can be detained should be three years (in line with clause (c) of Section 474 of BNSS). Since there is no term of imprisonment specified in the case of commutation of conviction for a term of less than seven years in Section 474 of BNSS, we could follow the principle of one third of the maximum punishment in such cases. For instance, the maximum period that a person can be detained for an offence punishable with three years of imprisonment can be fixed as one year.

As the Supreme Court has reiterated in some of the recent judgements, the right to life of the accused cannot be obliterated, no matter how serious the alleged offence. An accused has the right to speedy trials and if the State and the Court cannot provide it to him, they have no right to detain him for a prolonged period and award surrogate punishment, but have to release him after a reasonable time. The bogey of the possibility of tampering with the evidence, influencing witnesses, and flight risk cannot be grounds that trump presumption of innocence and right to life. And fixing the maximum period that an undertrial can be detained as a period equivalent to one third of the punishment for the offence is only a small step to show that fundamental rights are taken seriously and are not to be trampled upon indiscriminately.

Similarly, there is no reason why presumption of innocence should be whittled away due to the subsequent conduct of a person who has been found guilty on a previous occasion. A law that treats a person harshly on the basis of previous conviction when he is yet to be proven guilty on a subsequent occasion is just a legal garb for the prejudice that operates against a who has been found guilty once. It may make sense to treat a person harshly on a subsequent conviction – as in the award of enhanced punishment, but not when the person is yet to be proven guilty. Therefore, the upper limit on the maximum period for which an undertrial can be detained should apply uniformly to all undertrial prisoners regardless of whether they have been convicted earlier or not.

If the clause about the maximum period an undertrial prisoner can be detained has to be implemented effectively, it has to be raised to the level of a statutory obligation on the lines of Section 187 of BNSS (which is pari materia Section 167 of CrPC), which leaves no discretionary power to the Magistrate. If the right to be freed when the investigation is not completed within the stipulated time is a fundamental right and not merely a statutory right as held in Vikramjit Singh v. State of Punjab (2020) 10 SCC 616, the right to be freed if the trial is not concluded within a reasonable time can be no less in stature. The option of continuing detention after hearing the Public Prosecutor would virtually close the doors of bail as Magistrates more often than not get persuaded by rhetoric of Prosecutors, who at times act as though they were Police Prosecutors rather than Public Prosecutors.

In the current scenario, as there is no statutory limit specified for the conclusion of trial, it is left to the Constitutional Courts to intervene and adjudicate on the question whether the right to life of the accused person has been violated due to prolonged incarceration without trial. And this would happen only in the case of those who can afford to reach up to the Constitutional Courts. As it is left unspecified, the interpretation of what ‘reasonable time period’ is varies according to the vagaries of the varied Benches. It also depends often on how soon or late the file of the accused person reaches before a sympathetic Bench. If in some cases it is a matter of a year or two, in some cases it is nine or ten years or even more. Specifying the outer time limit for the conclusion of trial in the statute would not only make it uniformly applicable, but it would also make it enforceable at the level of the trial court and thereby within the means of those who cannot afford to know the doors of the Constitutional Courts.

Conclusion

The proposal to have parity between the term of imprisonment to which sentences of imprisonment can be commuted and the maximum period for which an undertrial prisoner can be detained – both in proportion to the sentence for the offence in question – cannot be repugnant to the spirit of justice the new laws are supposed to usher in. Mandatory release of an undertrial prisoner after the stipulated time period is only part of the commitment to conclude the trial within that time frame, and thereby ensuring justice to both the accused person and the victim of the crime. Keeping an undertrial person in prison endlessly and awarding surrogate punishment is justice to neither parties. And the new criminal laws are all about ushering in an era of justice, aren’t they?