Set up to review current laws on aggravated sexual assault following the brutal gang rape of a young girl in Delhi on December 16 last year, the Justice JS Verma Commission will submit its report to the government tomorrow. It will also make the report public.
The Home Ministry, while notifying the commission on December 24, 2012, had given it a month for the job. The committee has taken less than a month to scan hundreds of representations on the issue agitating the country. Before finalising the report, the committee comprising former Chief Justice of India JS Verma, Justice Leila Seth (former Chief Justice of Himachal HC) and Gopal Subramanian (former Solicitor General) met over 100 women’s representatives from across India.
Importantly, the commission expanded its area beyond the terms of reference the government set for it. The Home Ministry notification had asked it to “review the present laws to provide speedier justice and enhanced punishment in cases of aggravated sexual assault.” But the committee has looked at the context of sexual assault, including issues of human trafficking, missing children and beggary as factors behind crimes.
It is set to recommend a comprehensive criminal law amendment Bill that defines sexual assault to address penetrative assault as well as non-penetrative sexual offences such as molestation, stalking and stripping. Marital rape is also likely to be recommended for inclusion in the sexual assault law for the first time. Currently, marital rape is legal.
The panel is also expected to seek repeal of Sections 354 and 509 of the IPC which contain archaic notions of outraging the modesty of women and recommend their replacement with a clear gradation of non-penetrative sexual offences along with punishments depending on the violation of women’s bodily integrity.
For the first time, there is a possibility of security forces being covered as a separate category in the section of sexual assault law dealing with aggravated sexual assault. Section 376 (2) of the Criminal Amendment Bill 2012 which the government introduced in Lok Sabha last December doesn’t cover security or armed forces as a category under aggravated sexual assault and mentions only police, public servants, remand home in charges and hospital managements. The Verma panel will likely seek inclusion of armed forces and recommend waivers of prosecution sanction if they are accused of this offence.
On punishment, the committee’s view remains to be seen considering majority petitions argued against death penalty and chemical castration and sought quick justice and imprisonment ranging from 10 years to the rest of life for the accused depending on the crime committed.
Women’s groups unanimously opposed lowering the juvenile age from 18 years at present and called for accountability of states and Centre on care, protection and rehabilitation of juvenile delinquents. They, however, demanded lowering the age of consent for sexual engagement from the current 18 to 16 years.
In another expected recommendation, the commission will set to ask the government to make sexual assault a gender-specific crime insofar as the perpetrator is concerned. The current government Bill defines sexual assault as a gender neutral crime (meaning women can also rape and men can be raped).
“We argued that sexual assault be made gender-specific insofar as perpetrators (males) are concerned and gender neutral insofar as victims are concerned. Among victims, women, transgenders and other sexual minorities must be mentioned. The commission heard us favourably and examined linkages between government current economic policies and rising crimes against women,” said Vrinda Grover, top Supreme Court lawyer.
- It will cover penetrative assault as well as non-penetrative sexual offences such as molestation, stalking and stripping
- Marital rape is also likely to be recommended for inclusion in the sexual assault law for the first time. Currently, marital rape is legal
- The panel is also likely to press for doing away with archaic terms like outraging the modesty of women and recommend their replacement with a clear gradation of non-penetrative sexual offences
- For the first time, there is a possibility of security forces being covered as a separate category in the section of sexual assault law
- Women’s groups want marital rape punished (thehindu.com)
NEW DELHI: The Supreme Court may have declared in numerous judgments that speedy trial was intrinsic to right to life of an accused, but on Wednesday the court said it was apprehensive about fixing a time limit for completion of a criminal trial as it could be misused by intelligent criminals.
This comment came from a bench of Justices H L Dattu and C K Prasad during the hearing on a petition by advocate Ranjan Dwivedi, who has sought quashing of the trial proceedings against him in the L N Mishra murder case on the ground of inordinate delay saying the 37-year-long trial has blighted him personally, physically and socially.
Senior advocate T R Andhyarujina said Dwivedi was 27-year-old when the bomb blast at Samastipur railway station killed Mishra on January 2, 1975. The trial has dragged on for no fault of his, and now the accused is a frail 64-year-old. He said there was a grave danger of immense prejudice during the trial of Dwivedi as 31 of 39 defence witnesses cited by him to prove his innocence have died. As many as 22 judges have handled the trial at various stages.
“It is a unique case. The apex court has declared that right to speedy trial was a requirement under Article 21 guaranteeing right to life. But, the trial has dragged on for 37 years. In 1992, the Supreme Court had directed day-to-day trial in this case for a speedy conclusion. Two decades later, we are no where near the end,” Andhyarujina said.
“Whether the accused would get convicted or acquitted is immaterial. The question important here is whether any judicial system would tolerate such inordinate delay? Should the Supreme Court allow it to continue any more,” he added.
The bench said there was no denying that delay had been frequent in the judicial system in India. “Delay will continue to happen given the system we have. Delay definitely affects the trial but can the Supreme Court fix a time limit for completion of a criminal trial. The SC had earlier in a judgment specifically struck down fixation of a time limit for completion of trial,” it said.
“It is a unique case. But if we quash the proceedings, we may be sending a wrong signal, which may be used by an intelligent accused at a later date. We do not want this to happen because of our order,” the bench said.
The court was apprehensive that if a time limit was fixed on the trial, then an unscrupulous accused could deliberately delay the trial by challenging every order against him in higher courts and thus designed delay the trial to seek its quashing after a decade or so.
The bench said since the trial has reached the fag end after dragging for nearly four decades, it could ask the trial court to complete it in the next three months by holding proceedings on a day-to-day basis refusing adjournment on any ground to the accused and prosecution. It asked Andhyarujina and additional solicitor general Harin Raval to give their views to expeditious completion of the 37-year-long trial by Thursday.
Role of Ananda Marg was suspected in the case, and several people were arrested. The chargesheet was filed against several people, including Dwivedi. The trial was transferred to Delhi by the Supreme Court in December, 1979, after the attorney general alleged that Bihar government was interfering with the trial. Charges were framed against the accused in 1981. Dwivedi was granted bail in 1978.
Issue in cognisable offence referred to Constitution Bench
The Supreme Court has referred to a five-judge Constitution Bench the question whether the police are duty-bound to register a First Information Report on receipt of a complaint or information of commission of a cognisable offence or there is discretion on their part to order a preliminary probe before that exercise.
A Bench of Justices Dalveeer Bhandari, T.S. Thakur and Dipak Misra referred to Chief Justice of India S.H. Kapadia a writ petition which raised the important issue: whether it is imperative on the part of the officer in-charge of a police station to register a case under Section 154 of the Code of Criminal Procedure 1973 or whether he or she has the option or latitude of conducting some sort of preliminary enquiry before registering it. Writing the order, Justice Bhandari said: “We have carefully analysed various judgments delivered by this court in the last several decades. We clearly discern divergent judicial opinions on the main issue.”
The Bench said: “This court also carved out a special category… in the cases of Santosh Kumar and Dr. Suresh Gupta where a preliminary enquiry had been postulated before registering an FIR.”
Counsel for some States also submitted that the CBI Manual “envisages some kind of preliminary enquiry before registering the FIR,” the Bench said. “In view of the divergent opinions in a large number of cases decided by this court, it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench for the benefit of all concerned — the courts, the investigating agencies and the citizens.”
BY GEETA RAMASESHAN PUBLISHED IN THE HINDU
A police claim of self-defence to justify encounter killings must be held to higher standards of proof as the force is armed and trained for combat.
The “encounter” deaths of five persons suspected of having carried out two bank robberies in Chennai is reminiscent of the Batla house encounter. It has once again focused attention on the practice of extrajudicial killings in Tamil Nadu. Reports in The Hindu indicated that the police got a tip-off about where the perpetrators were, after the photograph of one suspect appeared in the media. As a follow-up, the official version goes, policemen visited the premises where the five men were and asked them to surrender. They in turn fired on the police, which resulted in the five being shot dead. Such a construction poses many uncomfortable questions.
How was the man in the photograph identified as one of the five men in the house? Again, why did the police not wait for the men to surrender? At the time of firing there was nothing to indicate that those killed were involved in the heist. They were purported to have been identified by eyewitnesses after they were killed.
The official claim that the police had to exercise their right of self-defence as they were shot at raises more questions than answers. It sweeps under the carpet disturbing aspects about the modus operandi of the police, in instances when they seem to conduct themselves more like vigilante groups rather than as protectors of the law.
In all cases of encounter deaths, the practice is to claim that the killings were done in self-defence. Under the penal code, the right of private defence is available to all, and no distinction is made between the police and layman. However the taking away of life can be done only under exceptional circumstances. The person seeking the right of private defence must have a reasonable apprehension that the person who is killed, would have killed him or her, or caused grievous hurt, could commit rape, kidnapping or abduction.
Private defence or murder
As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.
But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.
However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.
In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.
While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.
The Madurai based human rights organisation, People’s Watch, has documented at least 23 such instances in the past four years in Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.
A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.
(Geeta Ramaseshan is an advocate at the Madras High Court. E-mail: firstname.lastname@example.org)
Expeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping. He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.
While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it. He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.
The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:
The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.
Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.
Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.
Expresses concern at rising number of deaths in road accidents
Expressing serious concern over the rising number of deaths in road accidents, the Supreme Court on Thursday called for revisiting the sentencing policy to ensure harsh punishment for the ‘killers on wheels’.
Upholding the three-year jail sentence awarded by the Bombay High Court to Alister Anthony Pareira for causing the death of seven persons when his car ran into the pavement in Mumbai, a Bench of Justices R.M. Lodha and K.S. Khehar said the punishment must be in proportion to the crime.
Writing the judgment, Justice Lodha said, “The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”
The Bench said: “The World Health Organisation, in the Global Status Report on Road Safety, has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau [NCRB], the total number of deaths due to road accidents in India every year is now over 1,35,000. The NCRB report also states drunken driving as a major factor for road accidents.”
It said the country had the dubious distinction of registering the highest number of deaths in road accidents. “It is high time lawmakers revisit the sentencing policy reflected in Section 304 A IPC [death due to negligence]. It is true that the appellant has paid compensation of Rs. 8,50,000 but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, the High Court had been quite considerate and lenient in awarding to the appellant a sentence of three years for an offence under Section 304 Part II IPC [death caused by driving] where seven persons were killed.”
According to the Bench, “the facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, the sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.”
“Travesty of justice”
On the plea for letting the appellant off with the sentence already undergone i.e. two months in a case like this, the Bench said “in our view, it would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime.”
It said: “We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. The appeals are, accordingly, dismissed. The appellant’s bail bonds are cancelled. He shall forthwith surrender for undergoing the remaining sentence as awarded by the High Court in the judgment dated September 6, 2007.”
G P JOSHI IN THE INDIAN EXPRESS
The debate on the Lokpal bill has thrown up three propositions about the CBI. One, retain the status quo; two, transfer the control to the Lokpal; and three, make the CBI an independent organisation. The CBI is now governed by an outdated act of World War II vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4 (1) of this act vests the superintendence of the CBI in the Central government, just as Section 3 of the police act of 1861 vests the control of the state police force in the state government.
Since the word “superintendence” has not been defined in any law, both the Central and state governments have misused police forces to serve their partisan interests. There is a general perception that the CBI, like other police forces in the country, is influenced in its work by political considerations.
Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the Central government can cite in favour of retaining its control over the CBI. First, any police force, including the CBI, is a part of the executive, and in the Westminster model of governance that we have adopted, the minister concerned is responsible to Parliament for the efficient and honest functioning of his departments. Second, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.
While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous power that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.
In the judgment on the hawala case, the Supreme Court tried to make one such attempt. While the court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.
Unfortunately, the government did not implement the judgment of the SC either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgment in three important ways. One, it resurrected the Single Directive despite the fact that the court had held it null and void, being bad in law. Two, it did not transfer superintendence to the CVC fully. The CVC Act 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act 1988. Third, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgment.
The possibility of misuse of the police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. The UK seems to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The police acts in some other regions and countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department. In Queensland in Australia, communication between the minister and the commissioner of police is guided by clear provisions of the police act. Directions from the minister have to be in writing and the commissioner of police is bound to comply with the directions, but keep a record of all correspondence, which is later placed on the floor of the assembly.
In India, there could be mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. Also, the Lokpal could have its own independent investigating agency, which need not necessarily be the CBI.
The writer is a former director, Bureau of Police Research & Development, email@example.com
SUPREME COURT IN Sanjay Chandra vs Cbi on 23 November, 2011
Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused [Sharad Kumar Vs. CBI (supra)] and, therefore, there is no reason or change in the circumstance to take a different view in the case of the appellants who are also charge- sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions.
The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read 2 with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice.
In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is `the seriousness of the charge’. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather recalibration of the scales of justice. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.
This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42, observed that under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so.
This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:
The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.
It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight (17) In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus: 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 Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Articles 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 judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:
I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial …. It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death
It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. 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 habitual, 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. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance.
Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, this Court took the view:. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.
Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out
In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined: 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 insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial 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 Article 21 are the life of that human right. …
Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. 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. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice–to the individual involved and society affected.
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.
Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal
In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held: The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.
The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus: Bail remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression bail denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb bailer; which means to give or to deliver, although another view is that its derivation is from the Latin term baiul are, meaning to bear a burden;. Bail is a conditional liberty. Stroud’s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King’s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed–that is to say, set at liberty until the day appointed for his appearance Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.
Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras)
The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.
More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that just as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important This Court further observed : Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].
The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus: The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt
In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11) The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas
While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary) Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.
The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated: In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille
In `Bihar Fodder Scam’, this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.
- Post-2G, courts increasingly hanging up on bail pleas (indialawyers.wordpress.com)
- Are judges under media pressure in high profile cases- while deciding on Bail? (indialawyers.wordpress.com)
- No need for corroboration and conviction can be imposed on the sole statement of the victim – Supreme Court (indialawyers.wordpress.com)
Are the trial court judges in high profile case like 2G scam working under media pressure to deny bail to the accused?
This question was raised on Tuesday in the Supreme Court, which agreed to go into the bail principles afresh in the wake of such assertions being made by some senior advocates.
A three-judge bench, headed by Justice Altamas Kabir, the senior most judge after CJI, though pointed out that the Supreme Court had laid down the guidelines for courts below for granting bail, still the issue would be examined afresh in the light of the assertions made by the senior counsel.While fixing January 18 for fresh assessment of the guidelines, the bench also having Justices S.S. Nijjar and J. Chelameswar as the other two judges further explained that fresh guidelines had been recently laid on grant of bail by the top court in excise and income tax cases and the issue of bail in other general cases would be considered in the light of those norms.
The assurance from the top court came after senior advocates Ranjit Kumar and Mukul Rohtagi without specifically mentioning the 2G case, made an apparent reference to it with Kumar stating that the trial court judges were working under “tremendous media pressure” and fearing that any adverse publicity to their orders in high profile cases might affect their “annual confidential report (ACR)”.
Due to such a pressure, the basic principle that “bail is a rule and jail an exception” as laid down by the Supreme Court was being given a go by.
“The bail is even denied in cases where maximum punishment is only five or seven years,” Kumar said while arguing for the bail of Vikas Kumar Sinha, an alleged front man of former Jharkhand Chief Minister Madhu Koda, facing charges of corruption. Kumar said Sinha had been chargesheeted by the CBI with offences carrying minimum sentence of 3 years and maximum seven years almost a year back and he was in jail for two years now.
“I don’t know when trial will begin. He has already undergone two years of sentence. Why should the accused suffer such a long incarceration before the conviction? Judges refuse to grant bail as they are afraid of their ACR. A message should go to the trial courts that the accused also have the right under the constitution,” Kumar asserted.
His views were supplemented by Rohtagi.
Nov 4, 2011, 03.51AM IST TNN[ Dhananjay Mahapatra ]
NEW DELHI: The government is proposing radical reforms to ensure decriminalization of politics and intends to table a bill in the winter session of Parliament proposing to debar candidates facing trial in serious and heinous offences. At present, under the Representation of People Act, only persons convicted by a trial court and sentenced to more than two years imprisonment are debarred from elections for a period of six years, which commences from the date of completion of the prison term. This allows persons facing multiple murder charges to contest elections. Moreover, even if a sitting MP or an MLA is convicted of an offence and sentenced to more than two years jail midway through his term, he continues to be a people’s representative and can attend Parliament or assembly if he files an appeal in the higher court and gets a stay on the conviction. The proposed legislation, first reported by TOI on June 17, is going to be strict on such exigencies and says those who are chargesheeted by police, CBI or other investigating agencies for murder, acts of terrorism, rape, dacoity and similar serious and heinous offences would be debarred from contesting elections till the trial court acquits them. The legislation is part of the larger bouquet of anti-corruption measures government has embarked upon to blunt the attacks it has faced from Team Anna as well as political opponents over the issue of corruption. Government plans to pass three legislations: Lokpal Bill, Judicial Standards and Accountability Bill and Whistleblowers Protection Bill in the winter session. Besides, it has also planned to introduce Grievance Redressal Bill which, while ensuring smooth delivery of services, will also tackle corruption in providing the same. Conceived as an alternative to Team Anna’s insistence that the proposed Lokpal should be tasked with tackling corruption among lower bureaucracy as well, the Grievance Redressal Bill is being projected as a better way of fighting “cutting edge graft”. Government sources point out that under the Lokpal bill, failure to deliver a service is proposed to be treated as an act of corruption. They say this could only delay the delivery of government services since establishing a criminal charge could take time. As against this, the Grievances Redressal Bill provides to separate corruption from failure to deliver a public service/good and, thus ensuring that the grievance for the failure of delivery of service is redressed within a fortnight. During the discussion on stricter measures to decriminalize politics last week in the Cabinet Committee on Political Affairs, law minister Salman Khurshid argued strongly for the bill. These proposals on electoral reforms were firmed up during the tenure of Khurshid’s predecessor M Veerappa Moily, who had constituted a Committee on Electoral Reforms to recommend to the government concrete ways in which the electoral system could be strengthened through legislative means. Khurshid also laid stress on amending the existing provisions of RP Act to make filing of false affidavits by candidates along with nomination papers to declare their assets and criminal antecedents a serious offence which could attract a permanent ban on contesting elections. By this way, disclosure of criminal background would be made non-negotiable.
It means, if a candidate deliberately conceals his criminal antecedents and is found guilty, then he will be forced to abandon a career in electoral politics. The proposed amendments, discussed in the CCPA, also include withdrawing immunity to sitting MPs and MLAs from continuing with their tenure after being held guilty and sentenced to more than two years imprisonment even if they get the conviction stayed by a higher court on appeal. By this, the government intends to force an elected representative to resign from his membership from Parliament or assembly the moment a trial court finds him guilty of an offence and sentences him to more than two years imprisonment.
A public interest litigation petition filed in the Supreme Court by members of the India Rejuvenation Initiative, for fast-tracking criminal cases pending against MPs and MLAs, said: “Given a situation in which ‘winnability’ is the sole criterion for selection of candidates and those with deep pockets alone can hope to win elections, a criminal who has amassed money and influence through a ‘mix of terror and patronage’, has greater chances of winning than a clean and decent individual without such’ capabilities’. And most often criminals do win, which is why they are increasingly present in the country’s representative institutions.” The consequences of this trend “are seen in the increasing criminalisation of the process of governance with ministers, legislators, bureaucrats and unscrupulous businessmen combining to plunder public funds and prey on the public.” Criminal cases against politicians pending before courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing special courts, the petition said. A Bench of Justices P. Sathasivam and Jasti Chelameswar issued notice to the Centre, all States and the Election Commission after hearing senior counsel Rajeev Dhavan.
- Shortcomings and malignant provisions (indialawyers.wordpress.com)
- Citizens Right to Grievance Redress Bill, 2011 (indialawyers.wordpress.com)
- Why all in one? (indialawyers.wordpress.com)
- Legal concerns (indialawyers.wordpress.com)
- Is the government serious about dealing with corruption? (indialawyers.wordpress.com)
- Can Lokpal be investigator, prosecutor, jury and judge? (indialawyers.wordpress.com)
- Jan Lokpal Bill and Parliament (indialawyers.wordpress.com)
- No need for corroboration and conviction can be imposed on the sole statement of the victim – Supreme Court (indialawyers.wordpress.com)