Why The Supreme Court Of India Should Enlarge Prof. G.N. Saibaba On Bail

By Dr. P.S. Sahni

01 April, 2016
Countercurrents.org

“A separate ‘bail act’ is under consideration of the Government of India that would limit the discretionary powers of courts in granting relief to an accused.” - The Times of India, 26.3.2016

On 4th of April, 2016, the Supreme Court of India is scheduled to hear the bail plea of Prof. G.N. Saibaba, lecturer, Ram Lal Anand College, Delhi University and who is presently lodged at Nagpur jail.

Earlier in September 2013 the police had raided Saibaba’s residence and took away what was alleged to be ‘incriminating evidence’. Saibaba had been assisting the Maharashtra police in its probe whenever it descended in Delhi. A charge sheet was filed in the case in February, 2014 and a non-bailable warrant procured against Saibaba. He was eventually arrested. As Prof. Saibaba was cooperating in the probe there was no need for his arrest during the trial period. Ironically he has been arrested under various provisions of the Unlawful Activities (Prevention) Act, 1967 [UAP Act] as amended from time to time; some of the sections under which he has been charged include S. 13, 18, 20 and 39 of the UAP Act. Under this law anticipatory bail is expressly prohibited. Even the regular bail gets denied under the Act if the court on a perusal of the case diary or the report prepared by the police is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This goes against the fundamental principles of granting bail to an accused. It is ultra vires the Constitution as the liberty of the accused is unnecessarily curtailed. It is about time that the constitutionality of sections of UAP Act and other similar Draconian laws – under which bail is denied – gets challenged, notwithstanding that the constitutionality of the same may have been upheld earlier. No ‘special law’ should override the fundamental right to liberty of any citizen as enshrined in Indian Constitution.

Prof. Saibaba suffers from Post Polio Residual Paralysis of both lower limbs since age 5 years. He also has weakness of upper limbs. He suffers from acute low back pain due to the disturbed anatomical configuration of his bones and spine. He also suffers from cardiac problem and has high blood pressure. Prof. Saibaba is wheel chair bound and needs the services of an attendant for activities of daily living.

On 30 June, 2015 Prof. Saibaba was granted conditional bail on medical grounds for three months by a Division Bench of the Bombay High Court presided over by the Chief Justice; and on 4 September, 2015 the bail was extended till 31 December, 2105. The bail was cancelled on 23 December, 2015 by a Single Judge of the Nagpur Bench of Bombay High Court! The fact that during the period of bail there is nothing on state record to show that Prof. Saibaba has attempted to disturb or disrupt justice should have paved the way for bail. Ironically on 29 February, 2016 the Supreme Court passed the following order:

“We have perused the counter affidavit as also the additional affidavit filed by the State of Maharashtra. We have also heard learned counsel for the petitioner. It emerges that out of 34 witnesses, cited by the prosecution, some of the material witnesses have already been examined whereas 8 further material witnesses are yet to be examined. …

At the present moment, we consider it just and appropriate to direct the trial court to hold day-to-day trial with effect from 04.03.2016 so as to record the statements of all material witnesses. The statements of the material witnesses, referred to hereinabove, be positively concluded before the next date of hearing.
List again on 04.04.2016.”

There is an apparent apprehension that if enlarged on bail, Prof. Saibaba would jump bail and flee the country or otherwise influence material witnesses – both these assumptions are unfounded. Far from fleeing in the physical sense Prof. Saibaba is wheelchair bound and is not even able to stand on his own feet. Besides there is not even an allegation against him that he has ever tried to influence witnesses.

We had sent an email to Justice V.R. Krishna Iyer on 22 September, 2014 apprising him of Prof. Saibaba being denied bail. Justice Iyer’s deteriorating health by then ensured no reply from his side. He passed away on 4 December, 2014. The email is available at our blog: http://pilwatchgroup.blogspot.in/2014/09/email-to-justice-vr-krishna-iyer-on.html

How late Justice V.R. Krishna Iyer would have adjudicated on the issue: Glimpses from his treatise on bail.

“Prof. G.N. Saibaba has moved the Supreme Court of India for bail, having been arrested in May 2014 under various provisions of Unlawful Activities (Prevention) Act, 1967 as amended from time to time. During this period the petitioner has been out on bail for medical treatment for about six months. The examination of the material witnesses is underway.

Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to “fair trial”, whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings. This is by the way, although it is important that judicial business management by engineering, not tinkering, so as to produce efficient expedition, is an urgent, high-priority item on the agenda of court reform, to be radically undertaken none too soon.

Against the backdrop of social and individual facts the court must consider the motion for bail. The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserve judicial notice. The whole issue, going by decisional material and legal literature has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as an expression of ‘judicial discretion’. A scientific treatment is the desideratum.

The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble, decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by ‘law’. The last four words of Art. 21 are the life of that human right.

The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution.

What, then, is ‘judicial discretion’ in this bail context? In the elegant words of Benjamin Cardozo:

“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’. Wide enough in all conscience is the field of discretion that remains.”

Even so it is useful to notice the tart terms of Lord Camden that

“the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best it is oftentimes caprice; in the worst it is every vice folly and passion to which human nature is liable. . . . "

Some jurists have regarded the term ‘judicial discretion’ as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable silent command of our judicial system, and those who exercise it will remember that:

“discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.”

“An appeal to a judge’s discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law.”

Having grasped the core concept of judicial discretion and the constitutional perspective in which the Court must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for grant or refusal of bail. What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J. said:

“I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial.”

This theme was developed by Lord Russel of Killowen C. J., when he charged the grand jury at Salisbury Assizes, 1899:

“....it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial.”

In Archbold it is stated that:

The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial…
The test should be applied by reference to the following considerations:
(1) The nature of the accusation…
(2) The nature of the evidence in support of the accusation…
(3) The severity of the punishment which conviction will entail....
(4) Whether the sureties are independent, or indemnified by the accused person...

Perhaps, this is an overly simplistic statement and one must remember the constitutional focus in Arts. 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr. Bottomley.

Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgement and serve sentence in the event of the court punishing him with imprisonment.

It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society.

We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited; ‘community roots’ of the applicant are stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

Having regard to this constellation of considerations, carefully viewed in the jurisprudential setting above silhouetted, we are of the view that, subject to certain safeguards, the petitioner Prof. G.N. Saibaba is eligible to be enlarged on bail.”

[Extensive and exclusive quotes are from the case Babu Singh and others v. The State of Uttar Pradesh, AIR 1978 SC 527
Bench: Justice V.R. Krishna Iyer and Justice D.A. Desai]

(Dr. P.S. Sahni, Orthopaedic Surgeon is a member of PIL Watch Group. The group is campaigning on ‘bail not jail’ since 2014 particularly in cases of public importance wherein a socio-political environment has been manufactured which goes against the accused getting justice; the philosophical basis and theoretical framework being provided by Justice Krishna Iyer’s treatise on bail)
Email: [email protected])