Jail is not the Rule - Stating the Problem (Interlude)

(This is the fifth post in an ongoing series on restrictive bail regimes)

Restrictive bail regimes are arguably one of the most important issues in Indian criminal law and procedure. I use the term to refer to a swathe of statutory provisions through which the judicial discretion to grant or deny bail is curtailed, by mandating that such an exercise requires a court to formulate opinions about the merits of the case against an accused (wherever the prosecution opposes the request for bail). This usually presents itself in a formulation requiring courts must have "reasonable grounds to believe" that the accused is "not guilty of the offence" to grant bail. 

The previous posts in the series tried to locate these statutory clauses in Indian legal history. We looked at shifts in the kinds of criminal activity for which legislatures turned to such clauses, as well as shifts in the overall landscape of the general criminal procedure itself which had a bearing on how these clauses may well have worked in practice. Before we turn to the last two posts dealing specifically with restrictive bail regimes in two statutes [India's current anti-money laundering law and anti-terror law], it is helpful to have a summing up of the legal process problems which were flagged earlier. An interlude of sorts.     

Such clauses are obviously problematic because they render bail, a pre-trial measure to restore liberty of an accused, entirely contingent upon a premature discussion about the merits of the case even as the trial remains pending. What turns this problematic exercise into a grossly unfair and unconstitutional one is how the exercise is carried out in practice (which, if you read the previous posts, you know has changed over time). This practical aspect is the focus here.

Reducing delays in the trial has been a central theme of legislative changes to the criminal process in India, the thread which unites governments of the 1950s to the present regime. This has a material bearing on matters of bail generally, and naturally also on restrictive bail clauses. The argument flows from first principles. We conduct criminal trials because we accept that to imprison a person the allegations against them must be established beyond reasonable doubt. Till we have managed to do so, it is impermissible to deprive a person of their liberty. At the same time, in exceptional cases, there may be a need to restrain the person temporarily till conclusion of the trial to safeguard the process. 

Temporary legal arrangements which shift the status quo are fair because of their explicit acknowledgment to parties that it is only a temporary arrangement. Usually, the fairness of this arrangement formulated on the basis of first-impressions formed on untested material gets diluted as the litigation drags on; and, at some point the arrangement becomes untenable altogether. We usually think in these ways when dealing with civil cases, but criminal cases are no different. The status quo here is a citizen's liberty, and a shift from status quo is the arrest and custody pending trial. What makes this arrest and pre-trial detention on the basis of first-impressions palatable is its transient nature — it is a temporary holding measure, to tide over weeks or months by which point the set of allegations would have been tested on the anvil of beyond reasonable doubt.  

If an interim ruling is bound to cause a near-permanent shift in the status quo, a natural follow-up question is to think about how best we can ensure both sides get a fair and adequate hearing to put forth their side of the story. For starters, make sure that the material relied upon by the proponent is made available to the defendant, and hear both sides. The hearing should not be perfunctory but substantial, given its outcome is not a fleeting alteration to the status quo. Lastly, the higher burden is cast upon the party which wants to shift status quo, and must be discharged not by mere opinions and averments but substantive material of a kind that courts can judicially use.

Personal liberty is the default, and causing an arrest and thereafter seeking pre-trial custodial detention is the original shift in status quo, and bail is asking for a reversion to the status quo. This would mean that the State must initially carry the high burden to justify the arrest and discharge it using strong materials.  We can see this in play in statutes where subtle differences are prescribed in the standard for justifying an arrest depending upon the kind of offences involved (compare Section 41(1)(b) and (ba), CrPC 1973, as well as Section 19, PMLA 2002). Similarly, the accused would need the ability to rely upon whatever material is necessary to convince a court on why the accusations are not good and the situation must revert to status quo ante. In a restrictive bail regime, given that the merits of the case are determinative, the proponent would need a strong hand to justify its case.

Which then brings us to how are these burdens discharged by both sides. On this question of materials, the criminal law recognises that different phases in the life of a case would warrant different standards of justification for the State. At the start of an investigation, police necessarily invoke suspicion as a means to justify arrest. But as a case goes on, reasonable suspicion as justification must give way to prima facie proof, where proof is naturally based only on material that is admissible as evidence. This step-wise progression was well-illustrated by the Privy Council in Inspector Shaaban Bin Hussein [1969 3 All ER 1626]. In other words, once an investigation has concluded, suspicion must give way to proof to justify continued detention of an accused during trial. This distinction was of great relevance within the Indian setting where there was a consistent legislative choice distrusting the police. The clearest example being a disavowal of statements recorded by police during an investigation from being used at trial, except as a means for an accused to confront prosecution witnesses.

Crucial changes were made to this legislative scheme by amendments to the criminal procedure code in 1955 which introduced a conflict in the foundational precepts of the criminal process. These changes have been discussed in earlier posts but need more elaboration. Essentially, again frustrated by delays in trials, a comprehensive bill was moved in 1953 which sought to radically reimagine the criminal process. Two key changes being (i) deletion of the statutory prohibition against using police statements, and (ii) active use of such statements to speed up trials where police had investigated the case. In short, from distrusting police the law now sought to imbibe a position of trust. Huge uproar followed, the bill was debated at length both inside the House and before a Joint Select Committee, and ultimately passed after significant modification in 1955. The version of this bill which became law was very different from its initial avatar. Where the bill sought to significantly trust the police, the law diluted this approach and re-instated the barrier on using statements recorded by police. But at the same time, it retained the amendments by which such statements could now be used for substantive purposes such as framing charge and deciding matters of bail. 

This inherently contradictory position has remained with Indian criminal law ever since, and has not been addressed in the most recent 2023 laws either. What this means for arrest and bail is that the State can use material which can never be proof to discharge its burden till charge is framed and the evidence is recorded. What may have been a gap of few months or even a year in 1955 till institution of the case and taking evidence has today expanded to consuming several years in the life of a case, and requiring that questions of personal liberty continue to be decided upon untested allegations throughout this duration. 

Replacing legal evidence with the police file also carried serious consequences for how an accused can discharge the burden placed on them while seeking bail in a restrictive bail regime. There was no opportunity left to cross-examine prosecution witnesses at a pre-trial stage and introduce doubts in the accusation to convince a court that there were reasonable grounds to believe that the accused was not guilty of the offence. 

In other words, while the language of restrictive bail clauses has remained the same over time, the context in which they operate drastically altered the fairness of the regime. The context altered because of the changes made by Parliament to the criminal process, which transformed how the State and accused both discharged their burdens in matters of arrest and custody. While the law made it easier for the State to both discharge its initial burden on arrest and also oppose bail, it made it tremendously harder for the accused to discharge their burden to demonstrate why reversion to the status quo of liberty was necessary. Where the law had recognised a need to give a wide berth only during an investigation, since police were still gathering proof at this stage, amendments to the law post 1955 continued this wide berth till much later on in the legal process without corresponding safeguards to secure the position of the accused. 

The amendments did so by removing clauses which required courts to form their conclusions about the sufficiency of a case on the basis of evidence that could be challenged by either party, with new provisions that required courts to form judicial conclusions upon untested police material gathered during an investigation. Material which the law continued to condemn as being inadmissible and untrustworthy. No corresponding shifts were introduced to redress this balance, such as allowing for an accused to lead material in support of the bail to convince a court either. Now, accused persons had to discharge their burdens with both hands tied behind their back, being tasked to demonstrate reasonable grounds of their innocence whilst being unable to question the police material. Leaving us with a peculiar position that the law conferred far greater rights to safeguard personal liberty and civil rights against private parties, but did not confer such protections against the State even as it continued to recognise its potential for malice.

Thus, to simply point to existence of restrictive bail regimes in old laws a la Kartar Singh, is not a good enough basis to sustain their legality, let alone their legitimacy. If anything, Kartar Singh demonstrates the clear tendency on part of successive legislatures to act unthinkingly, introducing an antiquated statutory tool without any appreciation of the contextual requirements needed to secure its fairness.