Bail Is Increasingly Becoming The Exception
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By Our Editorial Team
First publised on 2022-11-23 06:50:56
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The India Commentary view
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CJI D Y
Chandrachud made a pertinent point when he said that lower court judges were "hesitant" to grant bail in cases of heinous crimes as they were scared that
they would be targeted. It is disturbing that despite our jails being full of
undertrials, some of whom have spent more time in jail then the punishment for
their alleged crime would have got them, and despite the law permitting lower
court judges to grant bail, these judges are not willing to exercise the
discretion. Bail, not jail has now become just a saying despite several nudges
from the Supreme Court that has repeatedly said that the triple test should be
applied and bail should be denied only if there are strong chances of the
accused absconding, threatening or influencing witnesses or tampering with
evidence if set free on bail. As Chief Justice, Justice Chandrachud has taken
the first step to prioritize personal liberty by directing the Supreme Court
registry to put up at least 10 bail pleas for hearing every day before each of
the apex court benches. This is a welcome move.
But bail pleas
are first put before the trial court. A majority of such pleas come from
accused who are poor and do not have the resources to approach higher courts if
there bail is denied. Hence, with lower courts not willing to grant bail, more
than 76% of prisoners in Indian jails are those awaiting trial. Further, the
higher judiciary is clogged with such bail pleas. Trial court judges must apply
the triple test and deny bail only if one or more of the conditions in that
test is likely to be violated, unless the law expressly prohibits them from
granting bail as is the case in some laws like UAPA, Pocso, SC/ST Atrocities
Act or the NDPS, for example.
Talking
about the fear of being targeted in the minds of lower court judges, CJI Chandrachud
said that "this sense of fear nobody talks about but, which we must
confront because unless we do that, we are going to render our district courts
toothless and our higher courts dysfunctional." This is absolutely correct
both for the rights of the undertials as for the purpose of fair and speedy
justice. It will also unclog the jails and reduce the burden on higher judiciary.
But for this to happen the Supreme Court must take the lead and issue further and
clear guidelines to lower courts or the government must enact a separate bail law as the
apex court suggested a few months ago.
