Bail, a human right

If courts cannot uphold the presumption of innocence by providing a trial, they do not have the legal or moral authority to keep a person incarcerated as a pre-trial punishment.

The law on bail and habeas corpus was the outcome of the atrocities meted out to the common citizen by those in power. This law must be treated as a facet of the natural laws against tyranny and those accused of crime. These laws protect those unequal in power and authority.

Justice V. R. Krishna Iyer, a deep social thinker, worked to eradicate this inequality through his politics, policy pronouncements and jurisprudential legacy. This earned him the Padma Vibhushan. His years of efforts in protecting personal liberty resulted in his famous statement, 45 years ago, in the  Balchand case which can be considered India’s Great Charter (Magna Carta), “The basic rule may perhaps be tersely put as bail, not jail.”

Data | Justice delayed: 1 crore cases pending for over 5 years, 76% prisoners are undertrials

Post the pandemic, we have heard the anguish of the Supreme Court and the Hon’ble Prime Minister about the number of people languishing as undertrials in jails across India. Whilst addressing the All-India District Legal Services Authorities on July 30, 2022, the Prime Minister mentioned that poor undertrials were incarcerated for years, and it is the duty of these authorities to take appropriate steps to give them justice.

Former Chief Justice of India N. V. Ramana recently echoed the views of Malcolm Feeley, Professor of Law at Berkeley, that “Process is the Punishment”. In 1979, Prof. Feeley found that both prosecutors and defence lawyers agreed that the pre-trial process itself was sufficient to “teach” the accused a lesson.

The criminal justice system is the guardian angel of personal liberty of the citizen. It is the doorstep to justice. Despite decades of expressing the constitutional values of life and liberty enshrined in Article 21, we only see the situation worsening.

In 1987, the Law Commission had recommended increasing the ratio of judges per million population, from 10.5 to 107 by 2001. Sadly, in 2021 that ratio stood at a meagre 21. The number of undertrial prisoners was a staggering 4.27 lakh, with many thousands of convicts awaiting hearing of their appeals. The judge-to-prisoner ratio is appalling, with a bearing on the pace at which trials or appeals are disposed of, and it is well-nigh impossible to have an early resolution of this problem. Numerous special courts have been set up in the expectation and justification of speedy trials. Yet the criminal justice system is collapsing.