Bail has to be the rule if clearing judicial backlog matters

The issue of the right to get bail by undertrial prisoners is an important aspect of criminal justice.

On February 17, the Supreme Court bench comprising Justices Abhay S Oka and Ujjal Bhuyan granted bail to an accused in a money laundering case citing prolonged incarceration and the likelihood of delay in the trial completion as the reason.

The accused in the case had been in jail for 14 months. There were 225 witnesses cited, out of which only one had been examined. This number, according to the court, meant that the trial is unlikely to be concluded within a few years.

Fundamental right versus statutory provisions

Citing an important judgment titled ‘V Senthil Balaji v. Deputy Director, Directorate of Enforcement' the bench highlighted an important fact. “Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions”, the court observed.

Often those accused in Prevention of Money Laundering (PMLA) cases find it difficult to get bail because of Section 45 of PMLA which lays down twin conditions which need to be satisfied for the grant of bail in money laundering cases.

However, in the V Senthil Balaji case the apex court held that the Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. Therefore, they cannot allow incarceration to continue for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time.

The judgment further added, “If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated”

Undertrials: Forgotten people of India’s criminal justice system

The issue of the right to get bail by undertrial prisoners is an important aspect of criminal justice. However, it is only one aspect of criminal trials which is also marred by the long delays. A delay in trial along with denial of bail, forces the accused person to be behind bars for a very long period without his guilt being proven.

In September 2022, Allahabad High Court granted bail to a murder accused who was languishing in jail for 11 years, awaiting the conclusion of trial. While granting bail to the accused the High Court made certain observations that hold a mirror to the state of undertrials in the country, specifically regarding their chances of getting bail.

The Court in its order granting bail highlighted the fact that such undertrials who belong to the "bottom heap of humanity and unfortunately forgotten class of citizens" lack resources to get proper legal aid reflecting a "systematic failure".  The High Court asked for "corrective measures" to be taken to rectify this systematic failure. It instructed the authorities concerned to organise legal aid workshops in every jail of the state to ensure that such grievances are promptly redressed.

It was neither the first time nor the last that a High Court has highlighted the flaws in the bail jurisdiction of the country. Respective High Courts and the Supreme Court of India, have time and again reaffirmed their stance that bail, not jail, is the rule and it should be the guiding principle of the bail jurisdiction in the country. Most recently this legal adage has been reiterated by the apex court while granting bail to former Deputy Chief Minister of Delhi Manish Sisodia.

The apex court while granting the bail to Sisodia made significant observations related to bail justice. Citing its earlier judgment, it said, "Over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Court’s attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straightforward open and shut cases, this Court is flooded with a huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that bail is the rule and jail is an exception”.

Link between bail and judicial backlog

According to the National Judicial Data Grid, 46.25 million cases are pending before different courts in India today. Out of this, more than 10 percent of criminal cases are pending before the courts for more than 10 years. This simply means that more than 46 lakh people accused in criminal cases are facing trials which started more than 10 years ago.

According to one of the estimates by the Law Commission, it would require 464 years to clear the arrears with the present strength of judges. A 2018 paper by NITI Aayog said it would take more than 324 years to clear the backlogs.

While there is no possibility of this pendency and long delay being reduced substantially any time soon, the only respite for undertrials can be a liberal bail regime.