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Delay in considering bail is an attack on constitutional principles. Many systemic flaws need correction

On learning that a bail application is pending since February 2020, Supreme Court directed Punjab and Haryana high court to expeditiously hear the matter, noting that the delay was an “infringement of right and liberty assured to an accused”. The dictum of innocent until proven guilty is under attack in India thanks to huge numbers of pre-trial/ undertrial prisoners (UTPs). Prisons should house convicts. But in Indian jails, UTPs outnumber convicts by a wide margin, 70:30.

Comparative figures for the US, despite its systemic faults like money bail and over-prosecution, is 24%, and the UK’s is 16%. Conviction rates of 90% and low case pendency automatically resolves this problem for many countries. But India struggles on both counts. Overall conviction rate touched 50% in 2019 but courts could dispose just 10% of cases related to crimes against women, economic offences, or offences against the state. Recall that UAPA charges against three anti-CAA activists failed Delhi HCs prima facie scrutiny. With 740 prosecution witnesses, the trial could have dragged on for years with the three in jail. Backlogged courts and judges often cowed down by police arguments are making quick grant of bails exceptions.

A systemic review and overhaul is necessary, beginning with employing more judges. Punjab and Haryana HC can point out that 38 of 85 sanctioned judges posts lie vacant. Across HCs, 650 serving judges have to carry the caseload of 450 judicial vacancies. Lower courts too report huge vacancies. Centre, SC’s collegium and HCs must fill these posts fast.

Criteria like gravity of offence, possibility of tampering evidence, and likelihood of absconding are usually considered during bail hearings. But if trials crawl, even such rational criteria tend to lose persuasiveness. Access to quality legal defence is uneven, too. Over 2.3 lakh of 3.3 lakh UTPs didn’t cross the Class 10 hump in school education. Without financial resources or legal literacy, they lose out. Bail bonds valued on property or tax documents is another giant hurdle: The poor struggle to find sureties to vouch for them, a fact flagged by Justice Krishna Iyer way back in 1978. And often, police oppose bail owing to difficulties in producing accused for hearings.

The list of things to do is long: appointing judges fast, hiring more cops, separating prosecution and investigative agencies, setting up well-funded legal aid networks, offering witness protection, and enlightened bail reform. But to do nothing questions India’s constitutional democratic credentials.



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This piece appeared as an editorial opinion in the print edition of The Times of India.



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