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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

Among the many colonial holdovers that continue to persist in our post-colonial legal framework, there is one that stands out as particularly egregious. In a series of “special criminal laws”, there is a provision that – in effect – prohibits a judge from granting bail to an accused unless that judge has “reasonable grounds to believe” that the accused is not guilty. This provision is found, for example, in the Unlawful Activities Prevention Act, in the Narcotic Drugs and Psychotropic Substances Act, and – until it was struck down by the Supreme Court – in the Prevention of Money Laundering Act.

This provision is repugnant to all notions of personal liberty, and it should be easy to see why: it effectively makes the grant of bail next to impossible. An adverserial legal system is premised on the assumption that in a case of competing narratives (i.e., every legal case), the “truth” can be known only when both sides have had a chance to contest each other’s version. The law of evidence – with its focus on cross-examination – is geared towards achieving this: through a detailed set of rules, it affords to both prosecution and defence an opportunity to test each others’ cases, bring out contradictions and conflicts, test the credibility of witnesses, and so on.

An application for bail is not, in principle, about truth or falsehood. In very simple terms, the basic logic of bail is that because the criminal justice system is premised upon the idea of “innocent until proven guilty”, it is presumptively wrong to keep a person in jail until the outcome of their trial – i.e., until a definitive finding has been returned on their guilt or innocence. This is why – traditionally – the considerations that are supposed to weigh with a Court in deciding to grant bail are the potential harms that might accrue from letting an accused out pending trial (he might, for example, flee the jurisdiction, or – if he is a powerful person – intimidate witnesses), measured against the core value of personal liberty (admittedly, this has been watered down substantially over the years, with the “nature of the offence” often playing a dispositive role in courts’ decisions whether or not to grant bail).

Consequently, prohibiting a judge from granting bail unless she is reasonably convinced that the accused did not commit the crime, takes a sledgehammer to the criminal justice process. It requires a judge to take a call on guilt or innocence at the beginning of, or in the middle of, the trial process, without all the information that she needs to do that. In practice, it invariably benefits the prosecution: first, in its very terms – it requires the judge to reach a finding that there is a reasonable likelihood that the accused did not commit the crime, as opposed to a finding that he did. Proving a negative is always substantially more difficult than its opposite. And secondly, it is slanted towards the prosecution because at the time of bail applications, the judge – in the normal course of things – effectively has before her only the Prosecution’s version (the FIR and the chargesheet). The defence may controvert it, but without the opportunity to attack the Prosecution’s case in the course of trial, at the best of times, it will simply be a clash of two rival versions. In such circumstances, a judge can hardly come to a finding against the Prosecution, unless the Prosecution’s own case is so riddled with inconsistencies, that it collapses under its own weight (it has been known to happen).

While such provisions might potentially be defensible in a legal system where trials are completed quickly, in the Indian justice system, where trials take years, they simply cannot be defended. They enable incarceration for years on end (recent UAPA cases have involved people being jailed for over a decade before being found innocent), without any judicial finding of guilt.

What do the Courts do in such a situation? One solution, of course, is to hold that such provisions are unconstitutional (which Nariman J. did, in a judgment on the PMLA). If Courts cannot – or are not willing – to do that, then the other option is to interpret the law narrowly, and in favour of the accused. The logic of this is simple: the more draconian the law, the more it impacts personal liberty, the more cautious a Court must be in interpreting it. A good example of this is the Bombay High Court’s bail judgments in the Kabir Kala Manch cases: Justice Thipsay interpreted the substantive provisions of the UAPA narrowly, in order to hold that on its own materials the Prosecution had failed to make out even a prima facie case for guilt. Consequently, he granted bail even within the constraints of the section.

On a different note, in a series of detailed and brilliant judgments, Justice Rajbir Sehrawat of the Punjab & Haryana High Court – after noting many of the basic arguments highlighted above – held that in certain statutes condition in question would not be “mandatory” for a Court to follow, while in an NDPS case, held the arresting officer to strict compliance of the procedural requirements under the statute – and granted bail as they were not followed.*

The judgments of Thipsay and Sehrawat JJ from the High Courts of Bombay and Punjab & Haryana show that even under draconian statutes, Courts have interpretive wiggle room to ensure that the individual rights are not entirely effaced by the logic of “reasons of State.” It is in that context that the judgment of the Supreme Court in State of Kerala v Rajesh, delivered yesterday, is disconcerting and disappointing. Handed down by a bench of Ajay Rastogi and Indu Malhotra JJ., this judgment swings the pendulum the other way, holding that in NDPS cases, there cannot be a “liberal” approach to bail (it is unclear what is meant by the word “liberal” here). Moreover, the judgment then holds, in paragraph 21:

The expression “reasonable grounds” means something more than prima facie grounds.  It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.  The   reasonable   belief   contemplated   in   the   provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.


In other words, the Court holds that before the Defence has even had a chance to fully controvert the evidence against the accused, there must be a finding of “substantial probably cause” that the accused is innocence. In other words, this finding must – to all effects and purposes – be made on primarily on the basis of materials adduced by the Prosecution. But how is this ever going to happen? If the Prosecution, for example, has listed three witnesses who saw me commit a crime, until the time I can cross-examine them to bring out the inconsistencies in their testimonies – something that happens at an advanced stage in the trial – how can I ever establish “a substantial probable cause” to believe that I am innocent? If the judgment is followed in letter, therefore, it effectively means that granting bail is almost impossible wherever there exists such a section – or at least, requires substantial ingenuity from High Court judges hearing such cases.

I call this form of reasoning “punitive Constitutionalism”, and it has been on the rise at the Supreme Court of late. Punitive constitutionalism operates on the assumption that the Constitution is not a charter of freedom or emancipation, but a document meant to discipline a recalcitrant or troublesome society. “Punitive constitutionalism” makes rights contingent on what the Court considers “good behaviour” (witness the Chief Justice refusing to hear cases until “violent protests” stop), invents new ways to whittle down rights against the State (witness what was done with habeas corpus in Kashmir), views every accused as a potential criminal rather than innocent until proven guilty, and sees procedural safeguards as impediments to an efficient criminal justice system rather than as essential safeguards of liberty. It is, ultimately, a school of thought that is closely allied with the idea of “executive Courts” – i.e., a Court that sees itself as part of a joint project with the Executive (however defined), rather than the institution that stands between the citizen and the Executive.

It remains to be seen whether this drift will continue in the near future.

(Thanks to Gautam Khazanchi for bringing these judgments to my attention.)