Foreign Law: History and critique of the Indian law on Bail
The British with the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1898, enacted the criminal justice system in India. The criminal justice system today is based on the principles of equality, liberty or as Oliver Wendell Holmes, Jr. puts it, “Your right ends where my nose begins”[1]. The laws were built to assure that no one is deprived of his/her liberty for an offence he has not committed and the procedure of punishment is as fair as possible. These principles are somewhat in contradiction to each other when seen critically. When we say that we punish somebody for breaching someone else’s right, we are technically breaching the accused person’s right by denying him his liberty.[2] Therefore, there is a need to be sure of his guilt before we, the justice system, curb his or her liberty. Thus emerges the principle of proving his guilt beyond reasonable doubt. However, in the matter at hand, this principle gets a little more complicated.
At the pre-trial stage, there is no confirmation of the accused’s guilt or innocence; therefore to arrest him, would be to curb his fundamental right to liberty. However, to let him free without any restriction might cause him to flee which would nevertheless lead to not achieving justice.[3] Therefore there is a need to draw a middle ground between these two conflicting views. I seek to find this middle ground with the help of the case of Gurbaksh Singh Sibbia v. State Of Punjab [(1980) 2 SCC 565]. This brings me to the topic of Bail. According to Black’s Law Dictionary, it is a, ‘security for the appearance of the accused person, on giving, he is released pending trial or investigation’.[4] Today, the accused after arrest, can ask for bail and that he or she be released on the surety that he or she will duly attend the trial proceedings and not try and flee.[5] This is a right for bailable offences and for non-bailable offences; rejection of bail is an exception.[6]
I will first be addressing the history behind bail and what was the reason for its origin, followed by a critique of the flaws in the practical process issuing bail. I will analyze the view of the Law Commission and of the Supreme Court via the case of Gurbaksh Singh Sibbia. Before concluding, I will provide a personal view of what I think is right and whether the Supreme Court and the Law Commission agree with my view.
In the words of one of the most prominent jurists, Krishna Iyer, J. –
“… Belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.[7]”
The subject of bail is very nuanced and has more implications that what seems at first instance. The concept behind criminal procedure is to obtain justice and punish the guilty. As stated above, at pre-trial stage the accused is innocent until proven guilty, therefore to restrain his freedom would be violating his fundamental right. Therefore there needs to be a fathomable justification to put him in jail. There is a risk that the accused may abscond and not attend the trial proceedings, agreed, however, this justification is not enough to infringe upon a person’s fundamental right.
To ensure his attendance to the proceeding, the founders of criminal procedure way back in 1275 enacted a legislation called the Statute of Westminster I. Chapter 15 of the statute dealt with bail, which is also called the Prisoners and Bail Act, 1275.[8] This curbed on powers of the sheriffs to grant bail in a discriminately fashion. It laid down guidelines where an accused can or cannot be granted bail.[9] Although sheriffs still had the authority to fix the amount of bail required, the statute laid down crimes which were bailable and which are not – as what today the Schedule 1 of the Code of Criminal Procedure, 1973 does. The Statute of Westminster I is also one of the foremost laws enacted to punish those who would commit a wrong and were sentenced, based on the French principle of peine forte et dure.[10] The Statute, still in force today in the United Kingdom[11] was used in the 17th Century to release noblemen who were wrongly put in jail by King Charles I. The noblemen filed Habeas Corpus petition under the Habeas Corpus Act 1679, and argued that the King violated the Magna Carta and the imprisonment without the right to bail was against the Statute of Westminster I.
As we can see, the history of Bail is a long one. In India, there are two types of bail, one being the normal bail, which is granted after the arrest of a person (There is also a distinction between bailable and non-bailable offences[12] in the Code of Criminal Procedure, 1973). Such a bail is granted under Section 436. However, an anticipatory bail under section 438 can be granted if a person apprehends arrest. The concept of anticipatory bail also stems from the argument made above. It has been noted in various cases that people with political influence have used their power to get someone wrongly arrested. They may get out of bail, however, they still have to spend nights in jail before a judge hears their case and decides on their bail. In most such cases, the arrest happens on Friday evening or Saturday evening, so the accused has to spend the entire weekend, before the judge wakes up on Monday morning to hear their case. Such a conflict is evident from the case of Gurbaksh Singh Sibbia v. State Of Punjab [(1980) 2 SCC 565].
The argument made by the V.M. Tarkunde, appearing on behalf of the appellants stemmed from Article 21 of the Constitution. The learned counsel argued that it is a procedural provision, which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail. Therefore he must be presumed innocent. The validity of the section must be examined by the test of fairness and reasonableness, implicit under Article 21 of the Constitution. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article 21. Therefore, while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual’s right to obtain an order of anticipatory bail.
The line between freedom of a person and the enforcement of justice is very fine, but it has to be drawn. I believe if there is a possibility of the accused fleeing; curbing his fundamental right to freedom to ensure justice is itself in violation of justice. The purpose of the judiciary is to ensure that justice is served and the culprit is punished. However, at the start of the trial, it is unsure whether the said accused is guilty or not. Therefore, as the well-established maxim says – innocent until proven guilty – he is an innocent citizen whose rights cannot be curbed based on a simple allegation. Moreover, in instances of anticipatory bail, it is a well-established practice that once the relief for anticipatory bail has been denied, the person is immediately arrested. Furious, the Supreme Court in the case of M.C. Abraham v. State of Maharashtra [(2003 2 SCC 649] noted, “The mere fact that the bail applications are rejected is no ground for directing the applicants’ immediate arrest.” I understand that there is a risk that the accused might abscond, however, that is not a justification enough to put him in jail. Such a provision will be and is misused by the Police. The case of Hussainara Khaitoon v. State of Bihar [(1980) 1 SCC 98], is a proof of the grave violation of fundamental rights of an individual due to the various restriction placed on bail provisions.
In light of such objections by the Courts and on the advice of the Government, the Law Commission came up with its 203rd Report on Anticipatory Bail.[13] The provision on anticipatory bail was amended by the Code of Criminal Procedure (Amendment) Act, 2005, however, it was not notified as it was not effective and did not solve the problems.[14] Therefore, the Commission went into the nitty gritty of the case law and the objections raised by the lawyers and the courts. It came up with the conclusion that –
“The principal objection against the new provisions has been the personal presence of the applicant at the time of final hearing of the application. The main apprehension has been that the applicant could be arrested in the event of rejection of his application and the applicant would thus be deprived of his right to move the higher court for necessary relief.”[15]
This objection stemmed from sub-section 1(B) of S. 438, which mandated that the accused be present at the time of the hearing. The Commission noted that such a requirement for compliance indicated the accused is in the custody of the court and this may render the relief of anticipatory bail infructuous and recommended deletion of the sub-section.[16] Moreover, the proviso to S. 438 was also objected to. The proviso enabled the officer-in-charge to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. However, as stated above, the Supreme Court clarified the law in the case of M.C. Abraham v. State of Maharashtra, for which it received acknowledgements from the Law Commission and the Law Commission submitted its recommendation in accordance with the Supreme Court decision.
I will conclude by quoting the Supreme Court in the case of Gurbaksh Singh Sibbia v. State Of Punjab, which summarizes the above arguments. It held –
“We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail.”
The Supreme Court and the Law Commission agree on the view that the fundamental right to freedom cannot simply be curbed on an allegation that the said person has committed an offence. As Justice Krishna Iyer rightly pointed out, the decision on bail cannot simply be decided on the hunch of the bench or the mood of the judge. It requires a careful evaluation of justice and public safety so that it is without any unnecessary obstacle both to the accused and to the public at large.
List of References
- 203rd Indian Law Commission Report. The text of the report is available at: http://lawcommissionofindia.nic.in/reports/report203.pdf
- Black’s Law Dictionary, 4th Edn., page 177.
- Eleanor G. Nash, 40 Degrees from Elsewhere, (Arthur House, 2011).
- Gudikanti Narasimhulu v. Public Prosecutor, AIR 1978 SC 430.
- Hussainara Khaitoon v. State of Bihar [(1980) 1 SCC 98].
- Indian Code of Criminal Procedure, 1973, Schedule 1.
- Pollock, Frederick and William, Frederic, The History of English Law, (Cambridge University Press) p. 650–651.
- State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673.
- State of Rajasthan v. Balchand, AIR 1977 SC 2447.
- Statute of Westminster, The First (1275), available at: http://www.legislation.gov.uk/aep/Edw1/3/5 (Last visited: 14 October 2021).
- Stubbs, William, The Constitutional History of England in Its Origin and Development, 1875 (The Clarendon press).
[1] Eleanor G. Nash, 40 Degrees from Elsewhere, (Arthur House, 2011)
[2] State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673
[3] State of Rajasthan v. Balchand, AIR 1977 SC 2447
[4] Black’s Law Dictionary, 4th Edn., page 177
[5] ibid. supra n. 3
[6] Hussainara Khaitoon v. State of Bihar [(1980) 1 SCC 98]
[7] Gudikanti Narasimhulu v. Public Prosecutor, AIR 1978 SC 430.
[8] Statute of Westminster, The First (1275), available at: http://www.legislation.gov.uk/aep/Edw1/3/5 (Last visited: October 7, 2015)
[9] ibid.
[10] Pollock, Frederick and William, Frederic, The History of English Law, (Cambridge University Press) p. 650–651
[11] Stubbs, William, The Constitutional History of England in Its Origin and Development, 1875 (The Clarendon press)
[12] Schedule 1 of the Code of Criminal Procedure, 1973
[13] 203rd Law Commission Report. The text of the report is available at: http://lawcommissionofindia.nic.in/reports/report203.pdf
[14] 203rd Law Commission Report. Pg. 2
[15] 203rd Law Commission Report, pg. 4
[16] ibid.