I strongly and emphatically protest against the recent attitude of the judges of the Supreme Court and other courts in India in bail matters, such as in the case of Delhi Chief Minister Arvind Kejriwal.
As far as back as 1977 one of the most celebrated judges in India, Justice Krishna Iyer, had laid down the cardinal rule in State of Rajasthan vs Balchand that bail, not jail, is the correct principle which judges must follow in criminal cases, as there was a presumption of innocence of the accused, and it is in accordance with Article 21 of the Constitution which guarantees the right to liberty.
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Article 21 is the most precious of all fundamental rights in our Constitution. Our founding fathers were themselves freedom fighters, who had seen an alien power trample on our fellow citizens during foreign rule, and so were determined to make India a land of freedom.
This principle has been consistently followed by the Supreme Court thereafter. Of course, there are some exceptions to the above rule, as mentioned below:
1. Bail can be denied in heinous violent crimes such as murder or gang rape
2. It can be denied if the accused is likely to abscond
3. Restrictions on bail can be put by the court if the accused is likely to tamper with the evidence
In the case of Arvind Kejriwal, the Supreme Court was justified in placing a restriction that he will not visit his office or peruse files, as there can be reasonable apprehension that he may tamper with the evidence.
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But having placed those restrictions, there was no justification for limiting the duration of the bail, and it should have been extended till the pronouncement of the verdict.
Similarly, bail should have been granted to the former deputy chief minister Manish Sisodia and others, placing the same restrictions.
There is another reason why the principle of bail not jail should be followed. It is well known that criminal cases in our country often take 10 years or more to decide. If bail is not granted, and if after 10 years the accused is found innocent, who will restore those 10 years of his life?
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However, what has been actually witnessed is the reluctance by most courts in India to follow Justice Krishna Iyer's golden rule. Not only is this violation of Article 21 of the Constitution, but it has also led to unnecessary overcrowding in our jails, where people under trial live for years on end in squalid conditions, as President Droupadi Murmu pointed out in her speech.
The Chief Justice of India must set up a Constitution Bench to review the matter of granting bail.
Justice Markandey Katju retired from the Supreme Court in 2011.
The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of THE WEEK.