Umar Khalid's bail order stated that one of the conditions of his release is that he install the Aarogya Setu, an app for COVID-19 contact tracing, on his mobile phone. Som Marandi's bail order issuedlast year had a similar condition in addition to a requirement that he donate Rs. 35000 to the PM Cares Fund. These bizarre bail conditions are no longer unique and are a part of a recent trend of bail orders ranging from funny to disturbing.
Apart from imposing bizarre conditions, judges in bail orders also make pre-determinations about the guilt of the accused persons. In the 2016 Delhi HighCourt's bail order for Kanhaiya Kumar, the judge remarks that the case is at the investigation stage yet goes on to state that "The thoughts reflected in the slogans raised by some of the students of JNU who organised and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression." The order also contains sermonising on soldiers at the border - "Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even. "
Before the Delhi High Court granted bail to Safoora Zargar on humanitarian grounds, the trial court had rejected the same observing "Further, even if no direct violence is attributable to the applicant/accused, she cannot shy away from her liability under the provisions of the said Act. When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire."
In the order passed in P Chidambaram's anticipatory bail case by the Delhi High Court, the judge stated, "The law must come down upon economic offenders with a heavy hand. It is often seen that when economic offenders are on pre-arrest bail, then the investigation conducted is at a superficial level, like in the instant case. This not only weakens mega scam cases, but it actually stiffs the prosecution. This Court cannot permit the prosecution in this sensitive case to end up in smoke like it has happened in some other high profile cases." The judge's main quip here seems to be incompetent investigations in past high-profile cases but the solution to that larger systemic problem is not undertrial detention. Lax prosecution in prior cases is certainly not a good enough reason to deprive a person of liberty in a current case.
Another disturbing trend in bail conditions is curbs on the freedom of speech and expression. Akhilanand Rao, who was accused of making objectionable remarks against the Uttar Pradesh Chief Minister was granted bail on the condition that he will not use social media for two years or till the conclusion of trial before the trial court, whichever is earlier. Jabin Charles, who allegedly posted a morphed picture of the Prime Minister on social media, was granted anticipatory bail by the Madras High Court on the condition that he does not use social media for a year.
Recently, the Supreme Court issued a set of guidelines regarding bail conditions to be imposed in cases relating to sexual offences, while setting aside a "rakhi for bail" condition imposed by Madhya Pradesh High Court in a sexual harassment case.
Bail orders are usually issued at the early stages of a criminal trial when the person accused of a crime is presumed innocent. The conditions of which a person is released from undertrial detention should thus be based on factors that are entirely independent of their guilt or innocence since that is yet to be determined. Bail conditions are a way of ensuring that accused persons do not hinder the investigation, tamper with evidence or re-offend. Section 437 of the Code of Criminal Procedure provides while a person is released on bail, the Court may impose any condition it considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
The Supreme Court circumscribed the breadth of the phrase "any condition" in the context of this sub-section by stating that, "The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint."
By contrast, the Additional Sessions Judge's bail order in the Disha Ravi confines itself to the evidence presented by the police and does not descend into sermons on patriotism and 'anti-national activities'. The judge firmly stated that "denial of liberty can be neither punitive nor preventive, and there is no justification for suspending the right to liberty of the applicant especially when she is neither a threat to the investigation nor to the judicial process."
It is necessary for judges issuing bail orders to restrict themselves to discussing matters relevant to deciding whether the accused person needs to be kept in custody or not. By commenting on the accused person's culpability, these orders erode their presumption of innocence and encourage media trials. Additionally, the conditions for release should not be punitive or irrelevant to the administration of justice. Bail should be seen as the default option and not as an act of mercy from the courts.
Views are Personal
The Author is Research Manager at DAKSH. She may be reached at [email protected]