Restrictive Bail Conditions in Indian Criminal Procedure: Lessons From History

The law on bail in India has often been discussed on the Blog. Most recently, we analysed the Indian Supreme Court's decision in Zahoor Watali, which revolved around Section 43-D of the Unlawful Activities Prevention Act 1967 [UAPA]; the provision which imposes conditions upon grant of bail in UAPA cases that go beyond the set of conditions laid out in Section 437 of the Criminal Procedure Code of 1973 [Cr.P.C.].

Section 43-D of the UAPA is far from the only example of Parliament creating a law that makes it more difficult to get bail. Indeed, on an earlier occasion, the Blog had offered an indicative list of the statutes carrying such provisions. But a lot was left out in that earlier post in the interests of brevity. Since the preference for such provisions is only increasing with each passing year, it's worthwhile to revisit the subject of restrictive bail conditions in Indian criminal procedure. 

This post takes a look at the first instance of such a provision being used in independent India, when it was added to the Essential Supplies (Temporary Powers) Act of 1946 [ESA] by an amendment in 1950 by the Provisional Parliament. 

Context: Scarcity in Independent India  

It is an undeniable fact that the overall quality of life has seen an increase for a majority of people in India since independence. Keeping that in mind, it is not easy for many of us to imagine the drastic scarcity in essential supplies, such as food and fuel, that India faced in the first two decades after independence. In an effort to manage the limited amount of these essential supplies, the Government chose to continue with a War-time measure of controls that entailed a system of intense state control over both production and distribution (Rohit De offers a window into this world in a chapter of his recent book). The ESA was one of those War-time measures that had been allowed to continue even after independence. 

But each passing month suggested that managing such a vast network of controls was proving too difficult. Thus, rather than curb prices and ensure fair distribution, the intense state control ended up contributing to a thriving black market. Here, supplies would be sold to the highest bidder and so profit would be much higher than what the trader would stand to get by selling material at artificially reduced prices. And this "blackmarketeering" happened by hoarding your supplies; telling customers that there isn't anything left when in fact a certain quantity of supplies was held back to be sold in the black market.

Basically, it became profitable to flout the law. But the costs of this were felt by everyone except the limited minority who could afford to spend large sums of money on the black market. This, naturally, meant that a large majority of the citizens of independent India were increasingly disaffected with the government that promised fair prices for goods and supplies. What was the point of independence, if it meant staying without food? This background helps understand the severity of the problem in the eyes of Parliament, and why it was felt necessary to amend the ESA in 1950 to introduce a stricter penal regime for those flouting the law (among other things).

ESA Debates in the Provisional Parliament: A "War" Against Hoarders

The ESA Amendment Bill was introduced and debated in the Provisional Parliament on August 14, 1950 (Page 1013, Left Column). The Minister for Food and Agriculture was K.M. Munshi, a lawyer who had played an important role through the drafting of the Constitution. 

After reading the different administrative aspects of the Bill, Munshi turned to the penal regime. Besides introducing a new offence with stringent punishment, the Bill also sought to make two changes to prevent persons from taking "advantage of the provisions of the Criminal Procedure Code" and drag out trials. One method was day-to-day trials for ESA crimes. The other, and the one that concerns this post, was introducing Section 13-A and a stricter regime on bail. He acknowledged that the Defence of India Rules were the inspiration for this provision, under which "bail cannot be given unless the prosecutor is heard and the Magistrate is satisfied that there are reasonable grounds for believing that [the accused] is not guilty." He further acknowledged, that "this puts the burden on the other side", but justified the measure as being an "emergency legislation" of some importance and this being a tool to deter people from hoarding. (Page 1020, Right Column).

The proposal did not go uncontested. Jaspat Roy Kapoor — who famously said that the Chapter on Fundamental Rights should have been renamed "Fundamental Rights and Limitations Thereon" — moved a motion to amend the clause which he argued was "against all elementary principles of law and equity" (Page 1097, Left Column). His changes to proposed Section 13-A were twofold:

• Rather than requiring that the prosecution be heard before granting bail, he suggested that the clause only require that the prosecution be given an opportunity to be heard. 
• Rather than require a court be satisfied that the accused is not guilty of the crime before to grant bail, he suggested that the clause should require that a court be satisfied that the accused was guilty of the crime.

The proposed changes were small but of substantial import. By requiring that the prosecution only be given an opportunity of being heard, rather than actually be heard, Kapoor sought to prevent cases where a wily prosecutor might create unnecessary delays to extend incarceration. Similarly, by asking that the court be satisfied about an accused person's guilt before granting bail, rather than be satisfied about her innocence, Kapoor sought to ensure that the clause was in harmony with the presumption of innocence:

It is for the prosecution to make out a prima facie case and not for the arrested person to establish his innocence when nothing has been made out against him. That is — I again submit at the risk of repetition — something astounding and offends against our sense of justice and jurisprudence. You may have a hard law, but let it not be a lawless law. Let it not appear to be ridiculous. After all that is not the way in which legislation should be enacted in a highly democratic Parliament. (Page 1100, Right Column).

The eminent lawyer Thakur Das Bhargava, another veteran of India's Constitutional journey, rose in support of this suggestion and condemned the proposed Section 13-A as "against all canons of justice and law" (Page 1101, Left Column). Naziruddin Ahmad also rose to support the attack on proposed Section 13-A, though, he was not troubled by the negation of the presumption of innocence as much as he was troubled by a fear of selective enforcement of this harsh tool (Page 1104, Right Column). 

The government response was telling. The Minister argued that the measure was hardly against all canons of jurisprudence as it had been part of Emergency legislation in India for a number of years. Removing this stringent bail provision, he argued, would weaken the whole legal apparatus (Page 1103, Right Column). When reminded that the Emergency legislation had been passed in times of War, Munshi boldly replied that "This is a war against hoarders" (Page 1104, Right Column).

Ultimately, Jaspat Roy Kapoor withdrew his amendment, stating that it was "sacred" to him and he sought to "spare it from defeat" (Page 1105, Left Column). Still, the suggested change with respect to giving prosecutors an opportunity to be heard was amended, as was a minor modification suggested by Bhargava on the degree to which a Court must be satisfied of innocence for granting bail. As a result, Section 13-A was brought on the ESA in the following form:

Notwithstanding anything contained in the Code of Criminal Procedure 1898, no person accused or convicted of a contravention of any order under Section 3 relating to food-grains which is punishable under the proviso to Sub-Section (2) of Section 7 shall if in custody, be released on bail or on his own bond unless

(a) the prosecution has been given an opportunity to oppose the application for such release, and 

(b) where the prosecution opposes the application it appears to the Court that there are reasonable grounds for believing that he is not guilty of such contravention. 

The Lasting Legacy of Section 13-A

K.M. Munshi was a supporter of expansive fundamental rights in the Indian Constitution. He was a proponent of having a "Due Process" clause, and when the phrase was culled from the text by the Drafting Committee, he was instrumental in securing its re-introduction through what is today Article 22 of the Indian Constitution. He was part of a group of persons which displayed tremendous ability to imagine an India different from the one they had inherited. One of the key features of this vision, was reducing the scope for individual oppression at the hands of government, by way of guaranteeing fundamental rights. 

At the same time, when faced with a problem of hoarding and food scarcity — which Government policy had partly created — Munshi and the other members leaders of an independent, democratic, republic of India displayed a telling lack of imagination and turned to the War-time measures of a colonial regime that simply invested greater powers with executive officers, while at the same time reducing the potential for checking abuses at the hands of such officers. 

This contradiction between legislative deeds and constitutional vision has continued to repeat itself often in Indian history, and especially if we choose to narrowly focus on the creation of new criminal statutes. Provisions with restrictive conditions on bail are one such example. Again and again, India seems to find itself in an "emergency" situation that needs a harsh procedure to prevent persons from getting bail too easily. Sadly, the government never comes around to telling us just how useful the "lawless laws" were in achieving any of the stated objectives.