] K. Chandru Former Judge Of Highcourt: https://m.thewire.in/article/law/judges-bail-orders Strange and Arbitrary Bail Orders: Are Indian Judges Going Too Far? A look at recent orders placing conditions on bail raises several questions.
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Economy Strange and Arbitrary Bail Orders: Are Indian Judges Going Too Far? A look at recent orders placing conditions on bail raises several questions.
Apr 29 2020 | Faizan Mustafa
In granting bail one must balance the personal liberty of the accused with public justice. Lately, there have been many problematic bail orders both in terms of their length, what they stated as well as the conditions these orders imposed. Recently while granting bail to Som Marandi, former BJP member of parliament, and five others, the Jharkhand high court directed each one of them to deposit Rs 35,000 in the newly formed PM CARES Fund and download the Aarogya Setu app.The contact tracing app was recently launched to fight COVID-19 and has been downloaded by more than five crore Indians though concerns about privacy have also been raised as the government may get access to lot personal information of its citizens. The law is clear that the conditions imposed on the grant of bail which has no nexus with the object and purpose of bail and tends to be in the nature of harassment to the individual with overtones on one’s constitutional and legal rights cannot be brought within the purview of the lawful exercise of ‘judicial discretion’. Thus the requirement that the bail amount be furnished in cash was also held as illegal.Let us talk of other strange bail orders. In July 2019, one Richa Bharti, who was arrested for writing an offensive post on social media against Muslims, was given bail by judicial magistrate Manish Kumar Singh in Jharkhand on the condition that she should distribute five copies of Quran to different libraries. Subsequently, this condition was withdrawn.Justice Pratibha Rani of the Delhi high court in 2016 passed a 27-page long bail controversial order in the sedition case against the then JNUSU president Kanhaiya Kumar. She did not hesitate in mentioning majoritarian rhetoric on “anti-national attitudes” in her order but ignored the established convention of keeping bail order brief. She also, completely out of context, referred to borders being kept secure by our forces and connected it with citizens’ freedom of speech. She unnecessarily indicted and stigmatised the country’s top university and asked the JNU faculty to pay the bond of Rs 10,000. She also imposed several conditions on Kanhaiya’s participation in what she termed as ‘anti-national activities’. More in Economy : Ola to Cut About 35% Workforce Amid COVID-19 CrisisChanges in Labour Laws Will Turn the Clock Back by Over a CenturyThe Modi Sarkar’s Project for India’s Informal EconomyWatch: Aviation, Tourism Sectors Under Increased Stress, But Will Be Back With a BangHundreds of Indian Migrant Workers Are Stranded in NepalClose Regulatory Cooperation Will Be Needed For Proper Scrutiny of the Jio-Facebook Deal Earlier this year, while granting bail to Swami Chinmayanand, the former Union minister and BJP leader who was accused of sexual harassment by a female law student of his college, Justice Rahul Chaturvedi of the Allahabad high court in his 25 page bail order made several unwarranted comments against the victim. Though the Amarmani Tripathi (2005) judgment of the apex court was quoted by the learned judge, it was not properly applied. In Amarmani Tripathi judgment, the highest court had said that while granting bail, judges should keep in mind factors such as ‘character, behaviour, means, position and standing of accused.’ The accused here was too powerful and the victim really powerless but the court overlooked this vital factor. In fact, this bail order looked like the final judgment of the case, even as bail orders are not supposed to make any determination of the guilt or otherwise of the accused.Also read: The Supreme Court Is Locked Down and Justice Is in ‘Emergency’ CareIn a case about three men who allegedly murdered a young Pune techie Mohsin Sheikh in 2014, Justice Mridula Bhatkar observed in her six-page order that the victim was wearing, a “pastel green colour shirt and had sported a beard”. “The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicant/accused. Moreover, the applicants/accused do not have criminal record and it appears in the name of religion, they were provoked and have committed murder,” the judge said while granting bail.The order is shocking and dangerous as it rewrites the whole jurisprudence of provocation. Provocation cannot be claimed against anything which is lawful – to be Muslim, to wear a green shirt or sport a beard has not yet been made unlawful in India. Moreover, provocation cannot be voluntarily sought. In this case, the accused out of their own free will went to listen to the speeches at a Hindu Rashtriya Sena event. This was a strange justification for granting bail.Binayak Sen was denied bail for years though he had not killed anyone. The charge against him was that he was allegedly a courier between jailed Naxal leader Naryan Sanyal and businessman Piyush Sinha because he met Sanyal 33 times, each time with due permission by jail authorities. The evidence against him comprised of a postcard written by Sanyal about his health and legal case duly signed by the jail authorities; a book on unity between CPI and Maoist Communist Centre and a letter from Madanlal Barkhade. Even an appeal for the release of Sen by Noam Chomsky and 22 Nobel Laureates did not move the then UPA government which had sided with the BJP government of Raman Singh in Chhattisgarh. Finally, the Supreme Court granted Sen bail.
