JUDICIAL INTERVENTION OR INFRINGEMENT: SCRUTINIZING SUPREME COURT’S ROLE IN REVISION OF BAIL PETITION
Pranjali Upadhyay, Student, Shri Ramswaroop memorial University, Lucknow
INTRODUCTION:
From a man accused of sexual assault being asked to get a rakhi tied on his wrist by the victim thus, attempting to convert a ‘molester’ to a ‘brother’ by judicial mandate to preventing an accused from participating in political activities, conditional bail orders have time and again proved themselves as being a synonym of ‘absurdity’ as the conditions imposed were so unusual that even their performance became a subject of mockery and debate all across the civil society; thus, undermining the very principles they are bound to uphold.
There have been a lot of instances where the conditions imposed raised serious questions about their legality and fairness.
The present blog dwells into various bizarre conditions which were applied and misapplied in cases which now serve as legal precedents exploring the validity and constitutional rooting of these bail conditions.
- TRENDS OF UNUSUAL BAIL CONDITIONS:
- Digital Detoxication: The court ordered the accused to remove themselves from all social media platforms for two months. [ Harendra Tyagi v/s State of M.P.]
- Applying for a passport: The court ordered the petitioner to apply for a passport, obtain it, surrender it before the court and then get released. [zakaulla khazi’s case]
- Donating Quran: A woman arrested for putting allegedly communal posts was asked to donate five copies of Quran to different libraries as a part of her bail condition. [Richa Bharti’s case]
- Purchasing non – Chinese LED TVs: The Madhya Pradesh High Court asked an accused to purchase a “black colored LED TV….worth at least Rs. 25000, manufactured in India or abroad, except China”
- Plant Trees: The Madhya Pradesh High Court, in an attempt to murder case, put a bail condition that the accused has to plant 10 saplings of either a fruit bearing tree or neem or peepal tree and secure them at their own expense.
- Wash women’s clothes: In September 2021, a local court in Bihar gave bail to a washerman accused of molestation on the condition that he would wash and iron clothes of all the women of the village for free for six months.
- Victim to be presented as surety: Patna high court granted bail to an accused on the condition that the victim of the offence would stand as his surety.
The list continues on and on and a lot more instances can be cited for this purpose where the conditions are not only absurd but sometimes impossible to achieve.
Are the Criminal Courts acting within their jurisdiction while imposing such conditions?
Section 482 of Bharatiya Nagrik Suraksha Sanhita,2024 empowers the courts to impose conditions while granting bails, but the conditions enlisted therein are either meant to help with disposing off the case or maintaining the status quo while the accused is out on bail. However, the courts today have started imposing conditions which no longer serve this purpose. The provision holds that the courts have the power to impose any condition which it considers necessary to protect the integrity of judicial process, where common conditions include:
- Regular court appearance
- Restriction on travel
- Not contacting the witness
- Depositing a bail bond
- Providing for sureties
None of which is anywhere connected to the conditions being given nowadays for a crime as serious as sexual assault and murder since no amount of explanation would be enough to justify planting trees as a pre-condition to acquire bail for a person accused of some heinous offense. The Sanhita does not specify the grounds for the grant or rejection of the bail in the case of non-bailable offences the judges are however expected to explore their creativity within the confines of law. Therefore, it can be clearly pointed out that such vague conditional bail orders have significantly no legal backing in order to support their imposition.
Supreme Court’s stance on onerous bail conditions:
The Constitutional courts have disapproved of and even set aside such troublesome bail conditions with a bench of Supreme court holding in one of its Judgement that ‘’the fundamental purpose of bail is to ensure the accused’s presence during the investigation and trial. Any condition imposed must be reasonable and directly related to this objective.” The bail conditions thus cannot be arbitrary, freakish and fanciful.
Another major issue in determining the legal validity of these conditions is that most of them give community service as a condition for getting bail which finds validity only in juvenile justice laws having little to no connection with adult offenders, therefore, the concept of community service itself is a result of judicial officers’ creativity.
With overcrowding of prisons and over-incarceration of undertrials being two persistent issues in Indian criminal justice system which is inextricably linked with bail practices followed by trial courts, our prisons are primarily populated with persons not convicted of an offence. The latest statistics of National crime records bureau establishes that undertrials comprise 76% of the prison population and taking into account the present trends of granting bail and decisions on conditional bail orders we may rest assured that the situations will show no signs of change for the upcoming foreseeable future not because the criminal machinery is not efficient enough in granting bails but because the number of bails being granted is lesser in comparison to the ones rejected by the top courts in lieu of them consisting of some bizarre and impossible conditions.
In addition to the above-mentioned hurdles in passing the test of constitutional rooting these conditions are sometimes directly violative of the fundamental and constitutional rights granted under the constitution. For instance, the Delhi High Court’s condition that the accused shall drop a pin on google map to ensure that their location is available to the investigating officer was considered violative of the accused’s right to privacy. [frank vitus case]
Although there is no constitutional right to bail various precedents have highlighted its links with Article 21 due to which the apex court has held that bail must be given as a matter of right in bailable offences and even in case of non-bailable offences where the granting of bail depends on the court’s discretion the opinion and discretion must not be exercised in a way the that the condition imposed is so excessive and onerous that fulfilling it becomes impossible. In a system that considers even a delay in granting bail as a violation of the accused’s fundamental right such conditions even vaguely cannot be given consideration when viewed from a legal perspective.
Another bench of Supreme Court which can be cited for having an opinion on unusual bail condition is of Justices B.R. Gavai and K.V. Viswanathan- ‘’ To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand what is given with the right”.
Therefore, in imposing conditions which have no nexus with the crime or with the attendance of the accused during trial or with the fair conduction of trial the courts are seen as acting on their whims which is not just against the law but a serious case of judicial overreach.
Proof of guilt before trial:
Presumption of innocence is one of most intrinsic values recognized by the Indian judiciary which holds that until the accused is proved guilty of the offences he is charged with he is presumed to be innocent before the law and is thus entitled to all the fundamental rights guaranteed by the Indian Constitution but the aforementioned conditional bail orders seem to be a deviation from this traditional practice as it makes certain acts as a necessary pre-condition for the purpose of obtaining a bail, this mandate denies the basic right of the accused of getting a bail provided that he furnishes a bail bond along with the required number of sureties thus making the conditions look like a punishment for an act whose commission has not yet been proved by the law courts. The conditions given are an indirect form of punishment, as community service itself is provided under various sections of the BNSS as a punishment for crimes which are not so heinous thus hampering the traditional legal principles which have been in practice since time immemorial.
References:
Books referred-
Bharatiya Nagrik Suraksha Sanhita,2024
Constitution of India by V.D. Mahajan
Links-
https://www.livelaw.in/high-court/bobay-high-court-ruling-trial-court-bail-condition-262955
Further Reading:
National Law School of India Review [volume 35|issue 1|article 8]
Asian Journal of Comparative Law [volume 19|issue 2] ( confused purposes and inconsistent adjudication – published online by Cambridge university press)