Jail is Not the Rule - Restrictive Bail Conditions, After Independence (Part 1)

(This is the third post in a series on restrictive bail regimes)

The previous post considered restrictive bail regimes in India's pre-independence context. In the first of two posts, we travel through independent India's history to look at such regimes.

Partition and Post-War Scarcity

It appears that the earliest instance of a restrictive bail regime in post-independence India came a few months after independence, in the form of the East Punjab Armed Bandits (Arrest and Detention) Act 1947. This law was promulgated to replace an ordinance that had come in less than a month after August 15, 1947, and its provisions give a glimpse of the enormity of violence which was unleashed in the wake of partition in the Punjab region, and the kind of measures resorted to by the state to try and restore a semblance of normalcy. Section 3 thus conferred powers of arresting without warrant any member of an "armed band"; and where resistance was offered to arrest, it legalised using violence to the extent of causing death. Arrested persons were to be sent to 'Concentration Camps' as per Sections 4 and 5 - one can only imagine the treatment envisaged by the state which adopted this language even after the war had given this term such monstrous connotations. 

In this remarkable statute, what interests us is Section 9, which carried forward the legacy of Rule 130-A of the Defence of India Rules (which had been repealed by now) and prescribed that "no person accused of an offence made punishable by this act shall if in custody be released on bail" unless (a) the prosecution was given an opportunity to oppose bail, and (b) "where the prosecution opposes the application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence".

Partition was not the only problem for a nascent Indian republic. A serious issue was post-war shortages in the economy which remained regulated through a complicated system of licenses and controls. The acuity of shortages in essential supplies was not helped by corrupt public servants, hoarders, and profiteers. Official sentiment against such undesirables was so severe that debates in India's Constituent Assembly (which functioned in a dual capacity till 1950) and even its Provisional Parliament contain speeches advocating the harshest measures to be deployed, including flogging in the public square. 

You can see where this is leading to. The fight to ensure essential supplies are secured was on a 'war-footing' for the country; an emergency requiring emergency legislation. It was with this mindset that, in 1950, the Provisional Parliament looked to amend the war-time Essential Supplies (Temporary Powers) Act 1946 to enhance its deterrent effect. Besides stiffening penalties and cutting corners in trials, what else did the Provisional Parliament do? Introduce a restrictive bail regime for certain specific crimes through Section 13-A of the Act.

The legislative debates around this specific amendment had been discussed on the Blog earlier. The government accepted that the lineage of the amendment went back to the War, but argued that the issue presented a similar emergency. There were attempts to change the 'not guilty' framing, which placed the burden on an accused, with the old Criminal Procedure Code framing which required the prosecution to first demonstrate that there were reasonable grounds to believe a person was guilty. But these attempts were in vain, and Section 13A was added to the law without any modification.

What the earlier post on amendments to the Essential Supplies (Temporary Powers) Act 1946 did not consider was its history outside of the Provisional Parliament. This suggests that prior to amendments in the central law, there were already provincial statutes covering the same field which had introduced the Rule 130-A style restrictive bail regime, and extended it to any crime under these laws making it much more expansive than the central law introduced later. Furthermore, the proposal to insert a clause identical to Rule 130-A for the central law appears to have been refused initially. Instead, the government seems to have been happy with only adding the requirement for courts to ensure the prosecution was heard, while leaving out the problematic 'not guilty' clause. What prompted the change of heart in the few months leading up to the amendment bill being introduced in the floor of the house? I am sure the answer is in the archives, but I have not been able to locate it yet.

There are some judgments applying the restrictive bail regime found in provincial laws dealing with essential supplies, as well as the central amendment brought in 1950. In Rajulal v. State (1950), the Rajasthan High Court commended on the undesirable state of affairs created by the regime which allowed one party to exercise an undue influence over the course of bail proceedings. Similarly, in Abdul Shakoor (1951), the Rajasthan High Court confirmed that the restrictive bail regime of the central law was comparatively more limited in its reach than the prior state laws. The task of interpreting the central law fell to the Calcutta High Court in Badri Prosad (1951) where a lorry driver was arrested, having been found in possession of bags of rice without a permit. While he claimed lack of knowledge, both the magistrate and sessions court denied bail holding that the presence of rice meant there were no "reasonable grounds" to believe the applicant was not guilty of the offence.

Both Justices Mukharji and Mookerjee agreed that the applicant ought to be released on bail, but the seriousness of Section 13-A prompted them to write separate opinions. Mukharji J. stressed on the limited reach of the clause, and cautioned courts to ensure that allegations against an accused genuinely fit the contours of the specific offences to which the restrictive bail regime applied. In respect of the application of Section 13-A itself, Mukharji J. noted that there were similarities between the Section 13-A and Section 497 of the Code, but went on to observe that:

Here, however, a word of caution is necessary. It is time that there under Section 497, Criminal P. C., what prevents bail is the reasonable ground for believing that the accused is guilty. That in actual practice works more favourably to the accused in the sense that at the early stages, before the regular trial has started, it is easier for the Court without the full materials to say that there are no reasonable grounds for believing that he is guilty and thus admit him to bail. But in a case, however, under Section 13A, Essential Supplies Act, it is the converse and more difficult case of reasonable ground for believing that the applicant for bail is not guilty. It is difficult because in actual practice it is bound to be unfavourable to the applicant for bail in the sense that at the early stages, before the regular trial bas started, it will ordinarily be difficult and may in some cases be impossible for the Court to say without sufficient materials that there are reasonable grounds for believing that he is not guilty. But that is the handicap which the statute has imposed in this case. [Emphasis mine]

Mookerjee J. agreed, noting that Section 13-A was a "drastic departure from the Code and as it undoubtedly works to the prejudice of the accused its seriousness cannot be underrated."

How to proceed then in considering a bail application and deciding whether there were reasonable grounds to believe a person was not guilty? Here both Justices appealed to a judicial logic built upon care and "utmost circumspection" in handling the material which was scanty at best at this stage and geared to assist the case of the prosecution. And, crucially, both Justices were emphatic in their belief that this clause did not oust the presumption of innocence, and rejected arguments by the state that this presumption did not operate at the bail stage. This presumption, according to Mukharji J., was a factor for courts to consider while deciding bail applications and ignoring it would be an "entirely erroneous" approach at the stage of bail. Thus, even though the inquiry required a court to discern whether there were any reasonable grounds to believe a person was not guilty, this was undergirded by respecting the presumption of innocence. 

Changes to the General Law

Living as we are at a time when the existing criminal codes are due to be replaced, there has been a fair bit of commentary around previous efforts at bringing reform, or lack thereof. In this regard, the received wisdom is that there was hardly any change in administration of criminal law during the early years of independent India, and proposals were consolidated and pushed through with the introduction of a new Criminal Procedure Code in 1973. 

Research suggests that this view is quite incorrect and the 1950s were, in fact, as dynamic an era as any in respect of conceiving and considering amendments to administration of criminal law in India. As early as 1951, the central government began consultations on revamping the criminal process, and introduced a draft bill in 1953. This bill, which was finally passed by both houses in 1955, towers above both the 1973 Code as well as the 2023 Sanhita, in terms of the kinds of changes it introduced to the process. While a much longer study is required to fully appreciate the place of these efforts and their impact on the law, for now let us focus on what it did for the bail process. 

There are three sets of changes relevant here; the first two pertain to the bail clauses, and the third to the overall administration of criminal law. First, it is interesting to note that the central government refused proposals to make bail stricter, raised by some states such as Uttar Pradesh. The U.P. government had sought to amend the general law on bail and take it back to something like the pre 1923 position, i.e. depriving magistrates of the discretion to grant bail for certain offences where reasonable grounds for inquiring into guilt could be shown. The proposal was rejected as being too restrictive on matters of liberty, as it meant that no bail would be granted during investigations. Second, in consonance with the belief that bail needed to be made more liberal, what the 1955 Act did was to introduce sub-clause (3A) in Section 497, which made bail a matter of right even for non-bailable offences, where trials before magistrates could not be completed within six weeks after having begun. It was the first time that a 'default' bail logic would find its way into the statute.

Third, is the changes in matters of administration of the law. In a bid to speed up the trial, two critical shifts were made. The committal process was radically altered: taking it away outright for many prior kinds of cases, and shortening it where it was retained by, for instance, taking away the right of cross-examination of witnesses. Recognising that this would leave accused persons short-changed, the 1955 Act introduced a parallel change mandating that the copies of the chargesheet, along with copies of statements of witnesses and documents relied upon by the police, were to be supplied free of cost to an accused person even before trial began. 

Members of Parliament who were lawyers could not contemplate doing away with committal. They argued that framing of charge had to be conducted without any proper evidence but only on the basis of the chargesheet and unsigned statements recorded by the police which were notorious for their unreliability and legally barred from being treated as evidence. In other words, charge had to be framed based only on the police version, that too upon inadmissible police statements. Not much attention was paid to the potential impact these changes would have on how bail applications are considered. The gradual easing-out of committal meant that the unreliable and inadmissible police statements would now dominate how courts would decide whether reasonable grounds to believe guilt existed or not, further worsening the position of an accused and enhancing the power of the police in ensuring bail is rejected.  

Turmoil, and War Again    

The end of the 1950s witnessed great turmoil across various parts of country, and India was at war with China at the start of the next decade. The turmoil in Punjab over the Punjabi Suba movement saw the state government invoke various measures to curb the agitation, which included an amendment (following an ordinance) in 1960 which introduced the restrictive bail regime for certain kinds of crimes. When the War came, the central government re-introduced the Defence of India Act — now the Defence of India Act 1962 — with its Rules. This time, the restrictive bail regime was there from the start, in the form of Rule 155 which copied verbatim the text of Rule 130-A of the Rules from the pre-independence war regime.

It did not take long for bail petitions to reach the High Courts under the 1962 Rules. I only flag two such cases here, which reflect the broader theme prevailing across the decisions of this time. In Govindankutty (1963), the Kerala High Court was dealing with the bail application of a publisher accused of printing a report prejudicial to the war effort. Rule 155 was invoked by the prosecutor to justify opposing bail. Dealing with the clause, the High Court observed that:

It is stated that this Rule is quite unreasonable and repugnant to the elementary notions of Criminal Jurisprudence that a person is presumed to be innocent until it is proved that he is guilty. Neither the Act nor the Rules indicate any attempt to depart from these well-settled principles. Rule 155 merely indicates that where a person is accused of an offence under the Rules the court may not liberate him on bail pending the trial, except when it has reasonable grounds to believe that he is innocent. When the court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge. Whether unreasonable or not laws lawfully made have to be given effect to by courts. It must be remembered that many provisions which would appear very harsh or unreasonable in peace time may be justified by necessities of war [Emphasis mine].

The parallels in language used here with the Madras High Court's opinion addressing the legality of the Defence of India Rules in 1942 in Bhuvaraha Iyengar (discussed in the last post) are striking. 

The High Court in Govindankutty noted that the validity of the rule had not been challenged. Seven months later, the same bench (Govinda Menon J.) dealt with such a challenge to Rule 155 in Hermen D'Cruz (1963). The High Court dismissed the challenge, relying on similar dismissals by High Courts to challenges against the validity of Rule 130-A raised during the Second World War, such as Bhuvaraha Iyengar. It was as if nothing had changed with the passing of the Constitution and India becoming independent. Much like the Madras High Court before it had done, the Kerala High Court now noted that since "grave charges" were levelled in the FIR and the chargesheet, it was "impossible for any court to be satisfied that there are reasonable grounds that the petitioner is not guilty of the contravention of the rules."

Summing Up

War, followed by a tragedy that was nothing short of a war, and then a war again. These were contexts in which a restrictive bail regime was prescribed which circumscribed not just powers of magistrates to grant bail, but also sessions courts and the High Courts. Besides the social and political context surrounding these statutory clauses, attention must also be paid to their catchment area. Even the Defence of India Acts did not introduce a catch-all clause that made the restrictive bail regime applicable to all crimes. Instead, the idea was to pick and choose the kinds of offences justifying these harsh measures. When it came to circumstances akin to war in the eyes of the legislature — essential supplies and the Punjab agitations — the catchment area of the restrictive regime was even narrower, and applied to crimes which had a prima facie element to them which gave the accused at least some chance to be able to discharge the onerous burden placed upon him. Thus, being caught with goods without a license was a situation which the accused could very well explain. This was unlike the wartime measures which imposed restrictions on bail for conduct such as publishing 'prejudicial reports', proving which relied a great deal on the subjective satisfaction of wartime censors and the courts as to the contents of materials.

The next post will turn to statutory developments from the 1970s and thereafter, bringing us to the most recent avatars of the restrictive bail regimes.