DC Edit | Time to recognise bail, and not jail, is the rule

The Supreme Court ruling that the judicial dictum, bail is the rule and jail is an exception, is applicable to offences under special statutes like the Unlawful Activities (Prevention) Act, 1967, underscores the primacy of India’s democratic Constitution and the fundamental rights enshrined in it in governance.

The judges were categorical in ruling that courts should have no hesitation in granting bail when a case is made out irrespective of the nature of the allegations of the prosecution. In a stern message, it has reminded the judges that, if the courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of the Constitution, which mandates that no person shall be deprived of his life or liberty except through the process of law.

The pattern that is emerging from the series of rulings by the apex court appears to be that it wants only those who are proven guilty of a crime punished. The process of the law cannot become the punishment irrespective of the nature of the alleged crime or the law invoked and the executive arm of the government should not weaponise the law against people.

Governments have the mandate to run the country as per the law but some people in governments at all points of time slip into a notion that those very same laws can be used to keep innocent people muzzled. They very well know that the person whom they would arraign as an accused in a case may not be convicted after a long and protracted trial but their immediate purpose will be served when they have been put behind bars without bail for long periods of time. The indiscriminate application of the anti-terror law will have a cascading effect of silencing on the government’s critics. The UAPA, for example, would mandate that an accused is not eligible for statutory bail before spending 180 days in jail with no chargesheet against him. The draconian Prevention of Money Laundering Act, 2002, makes bail virtually impossible as a judge needs to be prima facie convinced that the accused is not guilty of the offence even before the trial ahead of granting bail.

Studies have come up with startling findings that the anti-terror law has been rampantly used against weaker sections of society, especially backward classes and minorities. Given the lower courts’ disinclination towards grant of bail, which has been severely criticised by the Supreme Court only the other day, they were made to cool their heels as undertrials with no hope whatsoever of walking free.

It may be pertinent to note that it is not the prosecution alone that flagged the nature of the charge to deny bail — the Supreme Court sat in a special session on a holiday to ensure that a nearly paralysed academician, who was let off by a high court for the failure of the prosecution to stick to the mandates of the anti-terror law, remained in jail citing the grievous nature of the charges against him. That he was eventually let off by the same court after trial comes as a crude reminder that even the highest court at times blinked at the way people’s liberty was taken away by the state.

The assertion of the apex court that it will act as the guardian of the people’s right to liberty is a refreshing thought and a reassurance of the democratic freedoms that we earned after a long and painful struggle.