No better advice than one’s own

Personal liberty is one of the cornerstones of a robust democracy. And the custodian of this liberty is typically the judiciary, firewalling the individual from the potential excesses of the State and its many prosecutorial arms. In younger democracies such as India, the judiciary assumes an even more important role as other safeguards in restraining police action are usually nascent. The biggest weapon at its disposal is bail, allowing it to free the individual from police overreach, and upholding the principle of innocence until proven guilty.

Time and again, the Supreme Court (SC) has underlined the importance of making bail the rule and jail the exception. The latest instance came this week, when the apex court condemned the practice of higher courts casually staying bail orders granted by lower courts, particularly when the accused is neither a terrorist nor considered a threat to society. It called the practice shocking, and underscored that such stays should not be granted merely at the behest of probe agencies, especially when reasons for bail have been detailed by the trial courts.

This is all good in theory. In practice, however, adherence to this principle has been haphazard and sporadic, right from district magistrates to the highest court in the land. Judges appear hesitant in granting bail and often automatically side with the arguments of investigating agencies — this becomes even more pronounced in high-profile cases or proceedings involving politicians. More egregiously, the practice of obtaining a stay on a bail order, or for bail proceedings to be treated as full-blown trial is now no longer a one-off occurrence.

For the common citizen, it effectively means that obtaining bail is as good as an acquittal (because case proceedings routinely linger for decades) and is considered dependent on their ability to muster financial resources and access to competent legal representation. Those who come from weaker sections or marginalised communities struggle to obtain either. In sensitive cases that involve stricter statutes, the problem is compounded, subverting the principle of bail over jail. Against a backdrop where the police appear all too happy to file FIRs for frivolous or motivated reasons (such as a photoshoot or allegations of interfaith coercion), this spells doom for personal and civil liberties and, by extension, democratic freedoms.

This has led to India’s jails getting crammed with people who have spent years behind bars without any shred of guilt being proven. At last count, three-fourths of people (nearly 400,000) who are incarcerated are undertrials. In 25 out of 29 states, prisons are at more than 100% capacity and the national average overcrowding stands at 131%, with more people spending more time behind bars than they did a decade ago. The responsibility for this has to be shared evenly — from overzealous agencies and lower courts to the SC that appears to not pay heed to its own sermons. When deciding bail matters, senior judges only need to recall the principles they extoll in weekend lectures on civil liberties. It is unfortunate that in a mature democracy, repeated appeals from the apex court have still not instituted a robust mechanism for bail that lower courts follow scrupulously — one that is unsparing but fair, incisive but transparent. If there is to be a change in attitude, and there needs to be one, it has to begin now.

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