2 April 2021 3:59 AM GMT
What impels me to write this Article is a recent press report in Dainik Jagran which states that about 20000 bail applications are pending in Patna High Court. The bail applications filed in August -September 2020 have not yet been heard by the High Court, creating a new record of pending bail applications. Out of five working days, the High Court hears the bail applications for four...
What impels me to write this Article is a recent press report in Dainik Jagran which states that about 20000 bail applications are pending in Patna High Court. The bail applications filed in August -September 2020 have not yet been heard by the High Court, creating a new record of pending bail applications. Out of five working days, the High Court hears the bail applications for four days, but the number of such bail applications is not getting reduced because of fresh bail applications coming up to the High Court every day. There are thirty-two posts of Judges vacant and at present only 21 Judges are hearing the matters in Patna High Court, as a result of which, the pendency in the said High Court has been increasing day by day. This reminds me of the anguish late Justice Bhagwati felt in Hussainara Khatoon Vs. State of Bihar, AIR 1979 SC 1360 by observing that undertrials formed 80% of Bihar's prison population, their period of imprisonment ranging from a few months to ten years. In some cases, the imprisonment period of the undertrials exceeded the period of imprisonment prescribed for the offenses they were charged with. On these appalling outrages that have been brought before the Supreme Court, Justice Bhagwati found that those unfortunate under trials languished in prison not because they were guilty but because they were too poor.
The bail system, as it operates today, is a source of great hardship to the poor. To eliminate the evil effects of poverty and assure a fair and just treatment to the poor in justice administration, it is imperative that the bail system be thoroughly reformed to make it possible for the poor, as easily as the rich, to obtain pretrial release without jeopardizing the interest of justice. The Court at several times while dealing with the cases of undertrials who had suffered lengthy incarceration, have held that a procedure which keeps such a large number of people behind bars without trial could not possibly be regarded as reasonable, just, or fair to conform with the requirement of Article 21.
On further investigation, States/UT wise distribution of undertrials prisoners in various jails as on 31st December 2019 obtained from the records of Prison Statistic India,2019 prepared by National Crime Record Bureau, Ministry of Home Affairs, the following picture emerges:
State/UT-wise Distribution of Undertrial Prisoners in Different Jails as of 31st December 2019
Total Available Capacity
Under Trial Population
Under – Trial Occupancy Rate
Under Trial Occupancy Rate
All 29 States
All 7 UTs
The above data found on the records of the National Crime Bureau is quite menacing. If urgent measures are not taken, it shall result in the complete extinction of civil rights and liberties so zealously guarded under Article 21 of the Constitution of India.
Article-21 of India's Constitution says that no person shall be deprived of his life or personal liberty accept according to the procedure established by law. The expression "life" used in that Article cannot be confined only to the taking away life, i.e., causing death. In Unn v. Illinois, 1877(94)US 113 Field, J., defined "life" in the following words:
"Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world."
The expression "liberty" is given a vast meaning in America. It takes in its fold all the freedoms. In Bolling v. Sharpe 1954(347) US 407, the Supreme Court of America observed that the said expression was not confined to mere freedom from bodily restraint rather such liberty extended to the full range of conduct individual was free to pursue. As far back as in 1950 in AK Gopalan Vs. State of Madras, 1950 (1) SCR 88, the Supreme Court observed that physical restraint on a person's movements affects his liberty to a larger degree. Indeed, nothing is more deleterious to man's physical happiness and health than a calculated interference with his privacy. The Court, therefore, defined the right of personal liberty in Art. 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.
The right to bail is concomitant of the accusatorial system, which favors a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offenses not punishable with death or life imprisonment and only to women and children in non-bailable offenses punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and failure of the right to a speedy trial have prolonged incarceration of the poor inevitable during the pendency of investigation by the police and prosecution by a court. The established principle that bail is a rule and jail is an exception applies now more in the breach than in the observance.
In order to stop the explosion of pending bail applications and to ensure that the civil rights and liberties of citizens of India are meaningful and are constitutionally protected, it is necessary that certain strict and immediate steps are taken to safeguard the above constitution rights. In most of the cases, it is seen that the Subordinate Courts are reluctant to grant bail for fear of adverse remarks or on the apprehension that a liberal approach in granting bail may be viewed suspiciously by the High Court. Such concern must be eroded by the High Court in giving more latitude to the Subordinate Courts while considering bail applications in appropriate cases. The judges' strength at the subordinate level and the High Court level must be increased by filling up the vacancies at the earliest to cater to the immediate requirement of the adjudicatory machinery to deal with exploding bail applications. The offenses have to be also categorized. The minor crimes relating to imprisonment for less than three years have to be separated from other offenses and bail applications relating to minor such offenses may be disposed of liberally. The Economic offenses and other offenses for which prescribed imprisonment in more than three years should also be categorized. The crimes relating to the imprisonment of 3 to 10 years and ten years and more should be dealt with separately by designated courts for the above purpose. Unless the judicial and administrative authority does take such immediate measure, our Constitution's soul and wit, i.e., Article-21, shall ever remain in prison.
Views are Personal
The Author is Senior Lawyer at Supreme Court of India