Jail should be the exception, not the norm

News: Unlike most democratic countries, arrest seems to be becoming a norm in India. This needs an urgent course correction.

There are so many cases of unjustified arrests and denial of bails like of Aryan Khan, journalist Siddique Kappan, and many others. These all incidents raise questions on rule of law in India.

It is time to seriously consider whether the practice of creating too many non-bailable offences and the routine denial of bail serves the public interest at all.

What are the safeguards available in India?

Article 21 states no person shall be deprived of personal liberty except according to procedure established by law.
Supreme Court – has clearly stated that bail is the norm and jail is an exception.

What are the issues in granting bail?

-Conflict between personal liberty of the accused and interest of the community as a whole

-Sensational cases: The lower courts are reluctant to grant bail

-Legal issues: The presence of many non-bailable offences and routine denial of bails.

What is the way forward?

Amendment: Legal laws imposing difficult conditions for grant of bail should be amended. For example, section 45 of the prevention of money laundering act requires a judge to be satisfied that the accused is not guilty and will not commit any offence while on bail. This makes the grant of bail very subjective.

Decriminalization of several provisions: Amendments should be done in Central and State enactment e.g. companies act 2013 amended in 2020.

Sensitivity: Supreme Court: should take suo moto notice of unacceptable arrests and issue urgent directives to the Centre and state. Judges should also understand the importance of bail, particularly when most of the poor and illiterate accused have little or no access to legal assistance.

Making an arrest at an FIR stage destroys a person’s reputation. A subsequent acquittal cannot heal the scars. So while the investigation is going on and if the accused are cooperating, bail should be allowed to become the norm.

Source: This post is based on the article ” Jail should be the exception, not the norm” published in the Indian Express on 9th November 2021.