Jail, Not Bail

Judgement of Delhi High Court denying bail to Umar Khalid and others calls for a serious debate on the law of bail and the functioning of the prosecution as well as the judiciary in the country

- Dushyant Dave

LONG back, one of the greatest judges of this country, Justice Krishna Iyer, laid down the law on the subject: "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggesting of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court."

Today, in almost all cases of denial of bail by magistracy or district courts or even high courts, this basic law is not followed. Instead, judges review the merits of the case; in this case, seemingly, the high court assessed the 3,000-page charge sheet with 30,000 pages of electronic evidence, to conclude that the petitioners are prima facie guilty of a premeditated and well-orchestrated conspiracy behind Delhi riots, had made inflammatory speeches and that the trial was indeed progressing at a 'natural pace'. This was a completely wrong judicial approach.

Judges have lost sight of the fundamental guarantee under Article 21 of the Constitution of India, which mandates that: 'No one shall be deprived of his life or personal liberty, except according to procedure established by law.'