Bail, not Jail

The Supreme Court had reiterated that bail is a matter of right

In legal matters, courts have a right to detain a person. This can be due to non-compliance of court orders, possibility of escape and disappearance, or the chance that a person will tamper with evidence or threaten witnesses. There are, indeed, some very serious crimes where bail can be justly refused by the courts.

The Supreme Court had reiterated that bail is a matter of right. That means that the balance of convenience must be in the favour of the person charged. In other words, it is better to grant bail rather than refuse it. Of course, as in all things legal, this comes with a rider. Bail usually entails a money deposit with the court and a surety, a person who is responsible for the accused turning up when asked to.

This leads us to some intriguing thoughts. Suppose a man travels by train. He is too poor to buy a ticket; but the urgency of travel is very high. A child may be sick. A relative may have died. He received the message on his friend’s cell phone.

He gets caught for ticket-less-travel. He has no money to pay the fine. He is arrested and put in a lock-up by the railway police. He is produced, on the next working day, which may be three days later, before a magistrate. It is a small offence. The magistrate understands that, when caught entrain, the man can produce no surety. So, a monetary bail bond is imposed.

We now come to a catch-22 situation. The man is arrested because he had no money to buy a ticket and now he has to shell out money to get bail.

You be the judge. What would you do?

The Supreme Court has, again, come to the rescue of the common man. “Poverty can’t be a ground for keeping in custody an accused who is unable to furnish the bail bond,” the social justice bench, comprising Justices Madan B Lokur and UU Lalit, said. We feel that this is as path-breaking an order as any.

Moreover, the court has asked the legal aid people to make sure that this ruling is implemented all over the country. The sad fact is that, as of last year, 278,000 persons were languishing in jails across the country. Of these, 67% are under-trials; more than 186,000 are awaiting trial. Considering that the conviction rate in India is abysmally low, why are jails so overcrowded?

Under-trials are kept in a lock-up—a euphemism for a jail—for indefinite periods. The main business of the police is to quickly make out a case, a charge-sheet, and present it to the court. The court then decides on the bail, or whether to release the person. In myriad cases, though, the person rots in jail for a period longer than what he would have served, if he had been tried and convicted. For this, the cops are solely to blame.

Of course, if you are the high and mighty, you do not spend more than a night in jail. The privileged class suddenly becomes prone to ‘heart attacks’. The poor guys are rushed to hospital where they stay in comfort, till the day of reckoning; which never arrives till death or contacts solve the matter. Usually, by the latter.

Can anything be done about it? One cause of concern is public perception and pre-trial conviction by the sensationalising media. Once one reads in the newspapers of an arrest, along with juicy details, it is assumed that the person is as guilty as hell. This, often, translates into a fear in the minds of the authorities against early bail. More often than not, the bail plea is rejected. Better to err on the side of caution.

So, in spite of the hue-and-cry against the judges, there are some who uphold human dignity and act with sanity and fearlessness. We need our courts. 

Courtesy: Moneylife

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to mail@moneylife.in