The Complex World of Bail in India's Criminal Justice System

On January 24, 2020, a bench of the Supreme Court comprising Rastogi & Malhotra, JJ, delivered its judgment in State of Kerala v. Rajesh [Crl. Appeal Nos. 154-57 of 2020]. The State of Kerala had challenged an order of the High Court granting bail to persons in a case under the Narcotics, Drugs & Psychotropic Substances Act of 1985 [NDPS Act], arguing primarily that the order was bad since Section 37 of that statute had been ignored by the High Court. The Supreme Court agreed, and set aside the High Court's order.

This Blog has discussed the provisions which impose a burden on an accused to prove innocence at the bail stage, such as Section 37 of the NDPS Act, in some detail (See: here, here, here, and here). Our view is clear: such provisions are a blot on any legal system, let alone a system that purports to guarantee a right to personal liberty and professes a belief in the presumption of innocence. 

Given that the NDPS Act itself takes away that presumption and replaces it with a presumption of guilt, the results in Rajesh should not appear as very surprising. But even so, what is truly remarkable is how the Supreme Court took a legal provision that made it very difficult to get bail, and read it in a way that made it even harder, to a point where the idea of bail is rendered almost illusory in statutes containing such a provision. This scandalous burial of the presumption of innocence takes merely one paragraph (Paragraph 21) and, by the end of it, one wonders whether the Court really considered the consequences of its eagerness to add the veritable bite to the law's bark.

In a scathing assessment, Gautam Bhatia argues that this legal approach reflects the Supreme Court's support for blend of "punitive constitutionalism" that he sees reflected in other areas of the Court's recent work. Reading Rajesh, I would also argue that the decision is a reflection of another tendency of the Supreme Court which is of an older vintage. 

This is the tendency to overemphasise the allegations by considering the "gravity" of the offence and treat them as controlling while deciding an application for bail. Thus, when faced with a case involving allegations of a serious offence, one finds that the rhetoric often becomes eerily reminiscent to conversations people end up having on the lines of "How can you release murderers / rapists / etc. out on bail?", completely ignoring that at the bail-stage what we have are only allegations, and not proof of guilt. Rajesh, for me, is symptomatic of this approach. The moment you read that the case involved a haul of over ten kilos of drugs, and over Rs.13 lakhs in cash, there seems extremely little chance of any other outcome in a bail application, especially where the investigation was still ongoing. 

I wholeheartedly support the position that this approach of the law on the subject of a person's liberty is improper, privileging, as it does, allegations of criminal conduct, and rendering them sufficient to hold persons in custody almost indefinitely. But, at the same time, one must also acknowledge that these features of our "broken" criminal process end up taking a toll on those who knock on a court's door as victims. Indeed, as has been discussed elsewhere, in many instances we find that because the courts know that a conviction is lightyears away, they end up using the bail stage as a way to render justice to the victim by playing up the retributive tendencies. 

In fact, today, in an era of economic crime, there are many prominent examples of courts using the bail stage to secure compensation for a victim. Take, for instance, cases where a court rejects bail to the promoters in various Builder Companies that are being prosecuted by aggrieved homebuyers, unless the accused take steps to compensate the aggrieved victims (as in the case of Unitech). Or, of a person arrested on allegations of having duped countless persons into parting with their savings, where the court makes bail conditional on the accused depositing 50% of the allegedly cheated amount in a fixed deposit to ensure that the ultimate conviction of an accused does not bring a hollow sense of justice. 

How does one understand these cases? Is a court's willingness to go beyond the "alleged" nature of the facts at the bail stage always an instance of the judiciary behaving like executive courts rendering "punitive constitutionalism" and burying liberty? Or, are these actually instances of courts carefully doing justice to litigants in a broken criminal justice system? For me, you cannot look at a decision like Rajesh without also considering these questions, to which there are no easy answers.