Right to Bail under the Whip of the Pandemic

Introduction:

Law tends to protect the society and its people by putting a penalty on those who breach it. At the same time, it ensures that while doing so due regard is given to equity, justice and fair play. Therefore, a proper trial proceeding is established which is fair and reasonable. The Right to bail is not just a statutory right but a constitutional right as well. Article 21 of the Indian Constitution enshrines the principle of personal liberty of a person. The Criminal Procedure Code also includes a provision of default bail wherein the alleged accused can be permitted a bail, if applied for, where investigation has not been completed. Thus the law very specifically says that if the prosecution cannot complete the investigation on time, no punishment can be given to the accused. This rule was established by the Supreme Court in an appeal by a person who was accused of murder. The Punjab and Haryana High Court dismissed the default bail which was filed by the petitioner. The Supreme Court reversed this decision of the High Court.

The courts in India are considered as the sole protector of the fundamental rights of the citizens which is guaranteed to them by the Constitution of India. The Covid 19 pandemic has created a worse impact on every sector of the economy including the service sector. The pandemic brought a huge stagnancy to the plethora of services including the legal service. There has been a halt in the operations of the court for quite a long time due to the virus, especially during the lockdowns which has led to the rise in the number of pending cases before it. This article tries to depict the changes that have taken place in the court while granting bail due to the pandemic.

Types of Offences under The IPC

The Indian Penal Code distinguishes offences as bailable and non-bailable offence based on the intensity and gravity of the offence.

Bailable Offence

Sec 2(a) of CrPc defines bailable offences as those offences that has been shown as bailable in the first schedule or which is made bailable by any other law at the time in force. An offence is a bailable offence if it is not of a serious nature. In other words, those offences which are penalised with an imprisonment for less than three years or with fine alone can be called as bailable offences. Eg. Bribery (sec 171E of IPC), Public Nuisance (Sec 290 of IPC), Simple Hurt (sec 337 IPC), Death by rash or negligent act (Sec 304A of IPC). An alleged accused who has been arrested can file an application for bail as a right granted to him by the constitution as well as the statute. The person shall then be released if bail is granted to him by the concerned magistrate.

Non-Bailable Offence

Sec 2(a) of the CrPc defines non-bailable offence as those offences which are punishable with a death sentence, a sentence of imprisonment for life or imprisonment for 7 years or more. According to the sec, it includes those offences which are not included in bailable offences in the first schedule. Since the gravity or seriousness of the offence is more, the accused has no right to bail but it is considered as a privilege which is to be given at the discretion of the court. Crimes such as rape, murder, kidnapping etc. comes under the purview of non-bailable offences.

According to sec 437(2) of the CrPc, if during the investigation or trial, the reason to believe that such person has committed any offence extinguishes, in such cases, the person has to be given a bail even if there are reasonable grounds for the court to hold the person for further investigations. Sec 437 sub-section 6 of the legislation provides a limitation on the time period for the trial of a non-bailable offence which is 60 days from the date of the collection of first evidence. If during the end of the trial the guilt of the person cannot be proved then he will be granted bail. However, if the magistrate wants to deny a bail on him he may do so provided he has to justify his reasons in writing.

Right to bail under the established procedure has been the rule ever since.

Case Laws

In Aslam Babalal Desai vs State of Maharashtra 1992, the court held that generally when courts deny bail to an applicant, the grounds are interference or attempt to interfere with the given procedure of administration of justice, or an attempt to escape the course of justice or violate the liberty that he enjoys. When sec 167(2) is applied on the accused for the inability of the prosecution to complete the investigation within 60 days after the charge sheet is filed, the bail shall be cancelled only when reasonable and strong grounds are present for believing that the accused had committed a non-bailable offence. If such a case arises, the accused has to be arrested and taken into custody.

In Rasiklal v. Kishore Khanchand Wadhwani 2009, in this case, the court noted that for all bailable offences, the accused has a right to claim bail which is absolute and indefeasible. Once the bail paper is issued in the accused’s name, it is mandatory for the court or the police official to release him from detention. However, the court or the police official has an option to demand security in surety. The court, thus held that the order of granting bail is a judicial act and not ministerial one. Therefore there has to be a reasonable ground for any order on bail application.

In National Alliance for People’s Movement & Ors vs The State of Maharashtra and Ors, the SC noted that India has a total of 1339 prisons which houses approximately 4, 66,084 prison inmates. The number is huge leading to congestion in prison cells which is a serious concern in the event of a pandemic. So an HPC was constituted to address the loopholes during the pandemic to decide who should be granted bail according to the guidelines provided. However, if any case of grievance arises it will only be so in cases where an individual undertrial or a convicted prisoner has been denied bail and discriminated as against a prisoner in the same category who has been granted bail on the categorisation made by the HPC. The Supreme Court views personal liberty to be closely intertwined with the right to life under article 21.

In Gudikanti Narasimhulu case, Justice V.R Iyer identified the unfair denial of right to bail as a gross violation of a person’s right to personal liberty which is fundamental to every person.

In Gurubaksh Singh Sibbia which is a similar case, former CJI Chandrachud spoke about the importance of bail. He went back to the history of personal liberty and held that the grant of bail is the rule and its refusal is the exception.

Right to Bail during the Pandemic

A viral pandemic like Covid will most certainly spread like wildfire inside our poorly sequestered prison complexes. Considering this threat as a real and imminent threat, the government should take necessary steps to protect the people who are incarcerated into the prison cells from contracting the virus. The outbreak has also left an impact on the legal sector in various ways. Therefore, to ensure its smooth functioning, the courts in India have come up with both long term and short term measures. During the 21 days lockdown phase, beginning from 15^th March, the Supreme Court using its power under art 141 and 142 of the Indian Constitution posed a limitation on filing petitions/suits/appeals/applications and any other proceedings. Similarly, The High Court of Delhi directed that those interim orders which subsisted on 16^th March, 2020 and expired thereafter shall stand extended till 5th May, 2020.

The apex court with the cooperation of the other High Courts also paved ways to ensure that the rights of the people are not gasped during the pandemic. However, when it comes to bail there has been some serious concern as the courts have been unable to dispose of bail applications, both regular and default bail due to the temporary halt in court proceedings. Therefore, the Supreme Court issued regulations in a suo moto writ petition filed by the prisoners on 23^rd March 2020. According to the regulations, every State and Union Territories will have High Powered Committees (HPC) comprising of the Chairman of the State Legal Services Committee, the Principle Secretary of the Prison/Home and the prisoner’s Director General specifically to decide on the matters wherein parole and interim bail should be granted for an appropriate period to prisoners facing jail terms of up to seven years. This shall be done to make it easier for the courts to prevent decongestion which is one of the serious concern during Covid times. It is upon the discretion of the committee in deciding the class of prisoners who shall be released on parole and those to be granted interim bail. The HPC will be more proficient in taking decisions on bail since they can study the current position of the State and will be able to secure all details to make a decision. The guidelines issued by the HPC classifies the undertrials and the convicted prisoners by the nature of the offence and the duration of the punishment. Unlike the IPC, the committee separately classifies those undertrials and the convicted who have committed an offence under any special enactments notwithstanding the duration even if the punishment for the offence is less than 7 years.

On 23^rd July 2020, a Mumbai Court denied interim bail to five prisoners who had been an accused in a 2011 murder case. The additional sessions judge Prashant Sitre denied the bail on the ground that the act was barbarous. Their application plea was rejected keeping in mind the gravity of the crime. The main purpose of forming the High powered Committee was not to release every undertrials or convicted prisoners irrespective of the nature of the offence or severity thereof. The aim was to reduce congestion of prison cells to maintain social distancing in the eve of the corona epidemic. Thus, every state would have different considerations keeping in mind the occupancy of the prison, the current infrastructure, the need for decongestion, the spread of the virus etc. E.g. the state of Bihar has not released any prisoners on the grounds mentioned by the high Powered Commission due to the absence of prisoners contracting the virus. Also, the prisons of Bihar are not much overcrowded unlike prisons of other states. The High Courts of various states have implemented this order of the Supreme Court. The courts have put a reliance on the urgent matters only though there is still some vagueness in the term urgent.

An Analysis

These measures might be able to ward off the issue of overcrowding in prisons to some extent but not completely. There are many downsides to it. According to the measures, the criterion for granting bail is offence based with no leniency given towards the older inmates and those who are medically vulnerable. Also, those inmates charged with non-violent offences who are waiting for their trials gets no benefit during the pandemic.

There have been many instances in the court where bail was not granted to the person concerned even in the most critical situation. The courts refused to grant bail to the undertrials in the Bhīma Koregoan Activist even the concerned HPC for Maharashtra very specifically made its recommendations to grant bail to those above 60 years of age and/or those with underlying medical conditions. But when Mr. Varavara Rao and Ms Shoma Sen (Activist of the Bhīma Koregoan case) filed an application for temporary release on the grounds of advanced ages and multiple health ailments which puts them in a higher risk for contracting the virus, the Hon’ble Special Judge failed to appreciate the defence plea and refused to grant them bail. It has to be noted that Mr Rao had been admitted to JJ Hospital, Mumbai due to his ill health before the plea for bail was filed. He stayed in the hospital for quite some time but his stay was not informed to the family members by the NIA.

They only got to know about it through the Pune police. For Justice to prevail, the exhortation of Justice Krishna Iyer that “Bail is the Rule and Jail the exception” must remain a guiding light for all stakeholders in the criminal justice system. However, due to the blanket extension of bail granted by the court, crimes have been on an increase lately. Around 20 accused in Delhi riot cases are enjoying the benefit of blanket order granted by the court and are out on interim bail. On Friday, 23^rd October 2020, the Delhi High Court made ineffective the blanket order which granted interim bail and interim stay to the inmates which would be enforced from 31^st October. All undertrials whose bail period was extended have to surrender in a phased manner between 2-13 November.

A special bench comprising of Mridul J., Talwant Singh J., CJ. D.N Patel issued a direction to make appropriate arrangements for the surrender of the prisoners by taking required steps in view of the guidelines issued by the Government Authorities from time to time to contain the spread of COVID-19. However, such an act of the Delhi High Court can lead to an upsurge in the Covid cases. The situation in Delhi is still dreadful. If more and more prisoners are brought inside the cell it could cause a mindful risk of contracting the virus. It defeats the very purpose of limiting the overcrowding in the cells during pandemic. We need to keep in mind the well-being of those with comorbidities or pregnant or aged and with so many people returning from parole might defeat the purpose.”

Legal and Social Perspective

Bail is a fine balance between the liberty of an accused person for an offence and the interest of the society at large. So, the work at hand is not only to ensure a stricter and more efficient bail system for dealing with a growing number of criminal offences in the country but also to make them equitable. A harmony has to be created with the current socio-legal problems so that every undertrial and indigent person gets access to a fair trial and justice irrespective of the status of the person. The HPC which is commissioned to look into matters relating to bail has curtailed certain prisoners from the benefit of the interim bail in the pandemic. This has been done with a view to avoiding any adverse effect on the society at large. The HPC has only denied them of granting interim bail on the ground that in the pandemic they are entitled to be released on bail. However, they are not denied of any legal right, for that matter.

Conclusion

In the event of a pandemic, such as the novel coronavirus, it is essential to maintain the necessary norms, here being social distancing, in order to avoid the spread of the deadly virus. The most affected sections are the prisoners here. Indian prisons are hugely overcrowded. As such, they are mostly exposed to the virus. Therefore, the HPC was constituted to set a control on the spread of the virus in prison cells. The purpose of this HPC was to limit the congestion in prison cells. Discretionary power has been given to the members of the HPC to grant bail. However, in case of an arbitrary decision by the committee, judicial interference shall be made. The court shall always follow the guiding principle of ‘bail is the rule and jail is the exception’ for all the stakeholders in the criminal justice system.

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References:

1.  Aslam Babalal Desai vs. State of Maharashtra (1992) 4 SCC 272
2. Rasiklal v. Kishore AIR 2009 SC 1341
3. https://www.indiatoday.in/india/story/right-to-default-bail-suffers-in-pandemic-1740396-2020-11-12
4. www.livelaw.in
5. http://www.legalserviceindia.com/legal/article-4255-right-to-bail-under-the-whip-of-covid-19.html
6.  Gurubaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632
7. Gudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of A.P. (AIR 1978 SC 429)