Wednesday, May 25, 2011

Bail or Jail? What should be the Rule?

Kanimozhi was sent to judicial custody by the Special Court Judge conducting trials related to the 2G Scam. Well, but why I should blog about that?! Isn’t the law taking its own course? Isn’t that I have always been against the kind of politics and corruption being represented by Kanimozhi and her party today? Didn’t I always want to see those who blatantly misused their powers punished? Yes..yes..yes.. But this is not just about Kanimozhi; but about some basic issues related to rule of law and human rights!!

Let me state that it is within the judicial prerogative of the Judge to reach such a decision not to grant bail and anyone who is aggrieved has the choice of appealing before a higher court against that decision. Also, I am a firm believer that one should not criticise a judicial decision but should avail the legally available remedial provision of appeal. However, certain other developments related to that decision is forcing me to visit this subject of Bail or Jail.

As I was following the reactions from Tweeples and TV Anchors (the current barometers of public opinion) I realised that there was some kind of a celebration about the jailing of Kanimozhi. One reporter even dared to ask her father about his feelings to which he got a very basic, prompt and apt reply that the father is feeling like any father whose daughter is jailed!

Lot of vocal Indians have developed an aversion towards the political class and are not willing to give even the slightest consideration to any politician. Under such circumstances, it is only foolish to expect any sympathy towards a person who is considered to be one of the masterminds behind the biggest scam that India has ever seen! Kanimozhi represents all that is wrong with Indian political system- a product of political dynasty, a beneficiary of political nepotism, an accused of political corruption..... So, it was only natural to expect the caustic and sometimes rude comments and reactions against her and in support of her judicial custody.

Even with all the above factors that are essentially justifiable, certain issues remain for our consideration. Like that famous Malayalam saying, ‘we should not burn down our house to kill a rat’! Are we falling into the trap of forsaking basic legal principles for the sake of our wish to see those high and mighty subjected to some punishment for their misdeeds?

The new Chief Minister of Tamilnadu Ms Jayalalitha, (who, incidentally, was herself subject to criminal proceedings not long ago and is still under trial) even gone to the extent of saying that it is wrong on the part of Kani to seek bail on the ground that she is a woman and her lawyers doesn’t know law, as they argued the same ground before the court! Well I am sure Amma will definitely know more about bail and jail, on a personal need basis, but I still feel concerned enough to analyse the issues on the basis of my little academic knowledge on these subjects.

It is useful to have a look at the relevant provisions of Section 437 of the Code of Criminal Procedure, 1973, (CrPC) which deals with Bails in the case of Non-bailable offences and even our courts and judges are bound by:

“437. When bail may be taken in case of non bailable offence:- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail, but-

(i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:

Provided that the Court may direct that a person referred to in clause (1) of clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.”

I think the legal directive to the trial court judges is rather clear. If the accused is a woman release on bail is the preferred course, even in offences punishable with death or imprisonment for life.

Trial court has given two reasons for denying bail to Kanimozhi: (i) charge is of grave nature and (ii) she is in a position to influence witnesses. As for the first point, can an offence punishable with maximum of seven years be treated as graver than the offences punishable with death or life imprisonment, and the special consideration given to women denied to the accused?

As for the second ground, can such a generic position be justified in the eyes of law? Kanimozhi was never arrested by the investigating agency, obviously because they never found any reason to do so. She voluntarily appeared before the court and Investigator on summoning and never made any effort to escape the inquiry/trial. There are no known instances where she tried to influence any witness or tried to destroy evidence. More fundamentally, if influencing witnesses is a ground for denial of bail, should the court be arresting and keeping in custody all her family, including her father and brothers, each of whom are powerful enough to influence witnesses on her behalf? Rule of law demands equal treatment, irrespective of the status of accused!

Ensuring adequate evidence including proper witnesses is the duty of the State that charges the individual with an offence and that duty has to be discharged through the investigating agency. Shifting the burden on to the accused to ensure that witnesses are not influenced is like admitting the weakness of the case itself.

Indian Constitution guarantees personal freedom to all its citizens. The freedom should only be curtailed with proper reasons. The principles of natural justice demands every accused be treated as innocent until held guilty in a trial. As a corollary, only when the situation so warrants a person should be kept in custody and his/ her freedom curtailed.

Now let us consider the danger posed by adoption of Jail and not bail principle by trial courts. Firstly, it is easy for a government to accuse an opponent, political or otherwise, of a grave crime and to get him locked up in the jail for long periods. Criminal Trial will take place and subsequently he will get discharged but effectively the person can be kept out of public interaction for convenient periods!

Secondly, if a person is accused of offences and he is sure that he will be send to custody just because he is powerful enough to influence witnesses, then the possibility of his running away from the trial increases substantially. We have the example of people like Lalit Modi escaping and not even submitting to the investigation! It is only the faith in a fair trial that will ensure the presence of the accused in trials.

Finally before I end, let Kanimozhi stay in Tihar Jail for months, for all I care. But remember, if with all her reach and powerful family, she has to undergo an unfair custody and denial of bail, what about us the so called commoners? Who will ever save us, but for the well established legal principles and rules of natural Justice?

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