Let me at the very outset begin by voicing my utmost indignation at the discriminatory manner in which bails are given with poor being at the receiving end almost in all the cases barring a few notable exceptions. This has to change now. The earlier this is done, the better it shall be in the long term interest of millions and millions of poor people who for many years languish in jail just because they don’t have the push and pull to obtain the necessary money and other things required to obtain bail.
It is only the rich and influential who face no difficulty or just a few hassles in obtaining bail as they can arrange for money, surety etc at the drop of a hat. Why this raw discrimination between the rich and the poor? Under no circumstances can this be justified. I will not like to be even the last person on earth to ever justify this raw discrimination just because this malady has been an integral part of our legal system not just since independence but since British Raj days as we have also inherited the legal system mostly in the form Britishers handed over to us.
While craving for my esteemed readers exclusive indulgence, let me invite their undiminished attention to what our former. Union Law Minister Sadanand Gowda had said in this regard while as Law Minister for which I fully and unstintedly extend my fullest support to him. He had rightly urged the newly appointed chairman of Law Commission – Justice (retd) Dr BS Chauhan who is a former Supreme Court Judge and former Chairman of Cauvery Water Dispute Tribunal to explore the possibility of a ‘Bail Act’ that would ensure “uniformity and predictability” in matters relating to grant of bail in the country. Gowda has minced no words in urging Dr Chauhan to explore a “major revamp” in the bail system so that there is parity between the poor and the rich in their right to bail. I am sure that Dr Chauhan will pay heed to what our Law Minister Sadanand Gowda has very rightly urged him to do so.
For my esteemed readers exclusive benefit, let me also reveal here that Sadanand Gowda met Justice BS Chauhan on March 29, 2016 where he very rightly urged the latter to examine bail laws prevailing in countries such as the UK and US. Under Section 5(3) of the Bail Act, 1976 of the UK, a court in England that withholds bail is required to give reasons for doing so. Likewise, in the US an accused has the right to bail unless there is sufficient reason not to grant it. Why should India also not emulate the law as prevalent now in UK and US rather than blindly sticking to what the British Raj left when they treated Indians as slaves and we were ruled also by them?
Needless to say, the matter was first mooted by the law ministry after Bollywood star Salman Khan was granted bail the same day when he was convicted in a hit-and-run case. The ministry in September had written to the then Chairman of Law Commission – Justice (retd) AP Shah, seeking a report suggesting a revamp of the bail system. We all had seen how Salman Khan quickly got bail just because he had hired top lawyers like Harish Salve whereas we see how on the contrary a poor man who has no money to hire good lawyer languish in jail for an interminably long period just because of his poor financial condition.
I have always opposed tooth and nail Sadanand Gowda for not supporting the creation of a high court bench for not just 26 districts of West UP but for any of the 80 districts of UP except the one at Lucknow which is so close to Allahabad. When 3 high court benches can exist for just 6 crore population of Karnataka with less than 2 lakh pending cases and whose districts are half nearly as compared to that of UP then why can’t 3 and rather 5 or 6 high court benches be created for UP which has maximum pending cases among all states – more than 10 lakh as per official figures maintained by the ministry of Law itself, maximum population more than 20 lakh with West UP alone accounting for more than 9 crore population which is much more than Karnataka and most of the other states except Bihar, Maharashtra and UP itself of which it is a part yet has not even a single bench! If 2 benches of high court can be created for home state of Gowda for just 4 and 8 districts at Gulbarga and Dharwad then why can’t a single bench be created for 26 districts of West UP or for 80 districts of UP? Similarly why a lawless state like Bihar has no bench? The 230th report of Law Commission favoured more benches not just for Karnataka but for all the big states like UP, Bihar, Rajasthan etc! But on his courageous decision on enacting a uniform bail act, I fully support him.
It may be recalled that Gowda had spearheaded the most commendable initiative with an internal note. He wrote that, “There is a growing dissatisfaction among public about the system of grant of bail. Though it is a uniform and reasonable provision in theory but in practice it does not prove to be so. Rather, it has a crude effect on the undertrials and hence the system of grant of bail has come under severe criticism from a cross-section of society. Therefore the bail system as it is practiced in India may have to be studied in detail and major revamp may have to be brought in.” I fully support Gowda’s historic initiative. How I wish he also could have unbiasedly implements 230th report of Law Commission in all major states!
A senior official of the Law ministry while requesting anonymity told reporters of The Economic Times as reported in 13 April, 2016 that , “Bail(s) should not be a matter of discretion (of the judges). A poor person should be treated at par with a rich or an influential person when it comes to grant of bail. And that is possible only when there are specific guidelines laid down for grant of bail.” He also said that, “Another benefit of this will be that the judges would be required to give reasons for denying bail which would benefit an accused or an undertrial in challenging the order before an appellate court. Since at present bail is a matter of discretion (of the judges) the accused virtually has no cogent reason to immediately move in appeal against the denial of bail”. This is the crying need of the hour also!
Frankly speaking, I wholeheartedly support the landmark initiative of our the then Law Minister Sadanand Gowda in this regard. I am also happy to note that the Law ministry has told the Law Commission to submit a report after detailed examination of the subject. I am sure that Law Commission too which is headed by a former very learned Judge of the Supreme Court Justice (retd) BS Chauhan too will seize upon this landmark initiative of Gowda and act in the interest of millions of poor people who rot in jail for many years just because they don’t have enough money to hire lawyer leave alone good or very good lawyers as opposed to rich people leave alone celebrities like Salman Khan who get bail very easily! This should now end permanently! Uniform Bail Act must be initiated at the earliest cutting across different states so that no person of any particular state faces any kind of discrimination in this regard! No delay of any kind is advisable on this score! I don't see anything happening on this since last five years when the idea was first mooted historically but let's hope that better wisdom prevails on our lawmakers on this count also!
Sanjeev Sirohi
