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Resource centre on India's rural distress
 
 

Infinite justice?
-The Indian Express
 
The Supreme Court has now indicated its willingness to examine recent examples of bail being denied to high-profile politicians and businesspersons, in contradiction of our higher courts’ established injunction that “bail is the rule and jail is the exception”. The matter came up in a hearing on Ashok Kumar Sinha, an associate of former Jharkhand Chief Minister Madhu Koda, who has been in interim custody for two years now (for a crime whose punishment runs between three and seven years). Of late, the question of bail has been especially contentious in the 2G trial, where many of the allegedly influential accused have been repeatedly refused bail even though the interrogation is over and charges framed. However, it is important to remember that the issue of bail framed these past weeks is essentially one of liberty, whatever the identity of the interned person.
 
The Supreme Court’s own guidelines in earlier decades, famously articulated by Justice Krishna Iyer, underscored the principle of bail as default, in the interests of “liberty, justice, public safety and burden of public treasury”. Bail is expected to be withheld only in cases where there is a chance the accused may evade trial, destroy evidence or try to influence witnesses. A question raised in the 2G context it this: can the magnitude of the alleged crime and popular outrage over its audacity be a reason to deny bail? Crime and culpability are proved at the end of the process, not intuited at the beginning. Pre-emptively detaining the accused is an attack on the very foundations of our constitutional and criminal jurisprudence, which presumes innocence until otherwise proved, through patient investigation and trial. Though this denial of bail may be well-intentioned, a signal of the frustration with our slow legal process and the worry that the powerful manage to escape just consequences for their crimes, is it still not a repudiation of due process? In fact, bail reform is especially important for the many poor and vulnerable who are deprived of their legitimate freedom, often for months and years, as their cases drag on.

While pre-trial release on bail is a matter of judicial discretion in India (unlike many countries where it is a right), there is no question that incarcerating people based on a hunch about their guilt, or because of the din of public opinion against them, undermines civil liberties, and ultimately the legal process itself.