Privacy right is no cover for unlawful act: counsel


When there is a conflict between individual right on homosexuality and societal interest in morality, the latter will prevail, counsel Harshvir Pratap Sharma argued in the Supreme Court strongly opposing the Delhi High Court judgment de-criminalising homosexuality between two consenting adults.

Appearing for the former BJP MP, B.P. Singhal, Mr. Sharma told a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya that fundamental rights should not be read in isolation. They should be read along with the Directive Principles of State Policy. Every fundamental right was subject to public health, morality and decency.

Counsel faulted the High Court judgment, contending that consent for unlawful act was not consent in the eye of law and one could not claim the right to privacy for indulging in it. The court had dismissed petitions claiming right to gamble. “Tomorrow a pregnant woman might claim the right of abortion. Will the court allow it?”

Pointing out that India is a country of different religions and cultural identities, counsel said the Supreme Court, while deciding the question of legalising homosexuality between two consenting adults, should take this factor into consideration.

He said the Naz Foundation, petitioner before the High Court, claimed that it was working on a HIV/AIDS prevention programme. But when the Lucknow police raided one of its premises, several articles and videos were seized and it was found that the Foundation was carrying out perverted sexual practices in safe places on a collective scale.

Arguing that Mahatma Gandhi had considered homosexuality a vice and immoral, counsel said the word ‘unnatural’ would mean immoral, irrational and against public policy, and any unnatural act would be an offence. Pointing out that the court could interfere only if there was violation of one’s fundamental right, he said that in this case there was no complaint of violation. It was mere apprehension of violation and the court could not interfere unless and until the right was violated, he said.

Additional Solicitor-General Mohan Jain, appearing for the Health Ministry, in his written submissions, explained its concern for opposing the High Court judgment. “According to the National AIDS Control Organisation, the overall HIV prevalence among different population groups in 2008-09 shows that HIV is higher among the HRG [High Risk Groups], Injecting Drug Users [IDU] 9.19 %, Men who have Sex with Men [MSM] 7.3% and Female Sex Workers [FSW] 4.94 %, while HIV prevalence among the general population is estimated to be less than 0.5%. The estimated number of MSMs and Transgenders [TGs] at high risk in 2009 is 4.12 lakh. Through Targeted Intervention [TI] projects, 2.85 lakh (69%) MSMs and TGs have been covered under services. Since many MSMs are married and have sex with women, their female sexual partners are also consequently at risk for HIV/infection” Reluctance to reveal the same sex behaviour rendered risky sexual practices going unnoticed and unaddressed in MSMs.

The ASG said: “The fear of harassment by law enforcement agencies mostly leads to sex being hurried, particularly because these groups lack ‘safe place’ and they often utilise public places for their indulgence. They do not have the option to consider safer sex practices. The hidden nature of such groups hampers interventions under the National AIDS Control Programme, which is aimed at prevention of AIDS. This makes a large section of MSMs invisible and unreachable.” By creating a friendly environment, the people involved in risky behaviour would be encouraged to reveal information and this would help in providing them total access to the services of preventive efforts.

The ASG said: “HIV Sentinel Surveillance in India, implemented by the National AIDS Control Organisation, is the largest and one of the best systems in the world. The methodology adopted is globally accepted and in accordance with WHO/UNAIDS recommendations for HIV/AIDS surveillance. For this purpose, sentinel sites are set up at specific service delivery points or facilities such as ANC [Antenatal clinic], STI [Sexually Transmitted Infection] clinics and TI projects. TI projects are NGO-based projects that provide prevention services to high-risk groups [Female Sex Workers, MSMs and IDUs.] They are reached at several identified “hot spots” such as brothels, clubs, bus stops, railway stations, parks, theatres, etc, where the high-risk group individuals can be approached. Based on data from the NACP on population size and vulnerabilities of the risk groups, these sentinel sites are established at places where high HIV prevalence is expected and therefore, need to be closely monitored under the programme.”


Law on Bail

Supreme Court of India

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.

Judicial Accountability Bill introduced in Lok Sabha

A representation of the Lion Capital of Ashoka...

Image via Wikipedia

J. Venkatesan in THE HINDU

NEW DELHI: The Judicial Standards and Accountability Bill providing for a mechanism to deal with complaints against judges of High Courts and the Supreme Court was tabled in the Lok Sabha on Wednesday by Law Minister Veerappa Moily even as Opposition MPs were demanding a JPC probe into the 2G spectrum scam.

The Bill sets judicial standards and makes judges accountable for their lapses and mandates judges of the High Courts and the Supreme Court to declare their assets and liabilities, including those of their spouses and dependents and to file an annual return in this regard. This will be displayed on the website of the Supreme Court and the High Courts concerned.

The Bill to replace the Judges Inquiry Act retains its basic features, contemplates setting up of a national oversight committee, to be headed by a former Chief Justice of India, with which the public can lodge complaints against erring judges, including the Chief Justice of India and the Chief Justices of the High Courts.

At present, there is no legal mechanism for dealing with complaints against judges, who are governed by ‘Restatement of Values of Judicial Life,’ adopted by the judiciary as a code of conduct without any statutory sanction.

The five-member committee to be appointed by the President will have a serving judge of the Supreme Court and a serving High Court judge, both nominated by the Chief Justice of India; the Attorney-General; and an eminent person nominated by the President.

Scrutiny panels

On receiving a complaint, the committee will forward it to a system of scrutiny panels. In the case of a complaint against a Supreme Court judge, the scrutiny panel will consist of a former Chief Justice of India and two sitting Supreme Court judges, and in the case of a complaint against a High Court judge, the panel will have a former Chief Justice of the High Court and two of its sitting judges. The members of the Supreme Court panel will be nominated by the Chief Justice of India, and that of the High Court panels by the Chief Justice of the High Court concerned.

The scrutiny panels will have the powers of a civil court. For instance, they can call for witnesses and evidence. They will be required to give their report within three months to the oversight committee. In the case of a complaint against a Chief Justice, the oversight committee itself will conduct the scrutiny.

On receiving the report from the scrutiny panels, the oversight committee will set up a committee to further investigate the case. Like the scrutiny panels, the investigation committee will have the powers of a civil court; it will have the power to frame definite charges.

If the charges are not proved, the investigation committee can dismiss the case. Otherwise, it will give a report to the oversight committee, which can issue an advisory or warning or recommend minor punishment if the charges are not too serious. If the charges are serious, the committee can request the judge concerned to resign. If the judge does not do so, the oversight committee will forward the case to the President with an advisory for his removal.

The Bill mandates that judges should not have close association with individual members of the Bar and not allow any member of their immediate family to appear before them in courts. Judges should not contest any election to any office of club, society or other association, except those associated with the law or any court. Further, they should not have any bias in judicial work or judgments on the basis of religion, race, caste, sex or place of birth.

Protecting the lawgivers

A representation of the Lion Capital of Ashoka...

Image via Wikipedia


The Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 seeks to make long overdue amendments to Articles 217(1) and 224(3) of the Constitution of India, which peg the retirement age of high court judges at 62. Introduced in the Lok Sabha on August 25, 2010, the Bill takes its cues from the 39th report of the parliamentary standing committee on personnel, public grievances, law and justice, that the retirement age of high court judges be “brought at par with the retirement age of [judges] of the Supreme Court”, who presently retire at 65. However, while the objectives of the proposed amendment are laudable, the Bill in its present form may have an adverse impact on the length of the term of Supreme Court judges, unless its enactment is paired with a definitive policy on the age at which judges will be appointed to the Supreme Court.

As things stand today, an appointment to the Supreme Court of India carries with it not merely the ability to pronounce judgements of appellate finality, but also a three-year job extension. In fact, in 1950, the gap between the retirement age of high court and Supreme Court judges was even wider; back then, high court judges would retire at age 60, although the retirement age was raised to 62 by the Seventh Amendment (1956). But Chief Justice A P Shah’s highly visible retirement from the Delhi high court earlier this year brought into question why high court judges must retire earlier than Supreme Court judges at all. Indeed, the Constitution’s retirement age gap seemed to be nothing more than hierarchical hieroglyphics: despite what one may say about Delhi’s cleaner air and better infrastructure, appointment to the Supreme Court does not extend life expectancy.

However, the difference in the retirement age of Supreme Court and high court judges may have been rooted in practical considerations – particularly, it guaranteed that our Supreme Court judges would serve terms of at least three years in office. Today, Supreme Court judges are picked almost overwhelmingly from the senior ranks of the high courts – typically from the pool of high court chief justices across the country. By virtue of the High Court retirement age, these judges, though on the older side, are all under the age of 62. For example, two out of three of the latest appointments to the Supreme Court, Justices H L Gokhale and G S Misra, were appointed at age 61. Similarly, 15 out of 29 Supreme Court judges on Chief Justice S H Kapadia’s court at present were appointed at age 60 or above. Since a judge appointed to the Supreme Court is under 62 by virtue of the retirement age, the Constitution presently ensures that he will serve a term of at least three years in office, i.e. until he turns 65.

But if the retirement age of high court judges is raised to 65, then the pool of judges from which the collegium will have to pick Supreme Court nominees will necessarily be older. For example, increasing the age of retirement to 65 may make it more difficult for the collegium to ignore a 64-year-old high court chief justice for appointment to the Supreme Court. This may inevitably result in the appointment of judges to the Supreme Court who will spend short one- or two-year terms, if not terms of only a few months. It cannot be emphasised enough that constitutional courts which impact questions of policy must have judges who serve adequate terms in office. After all, its members are judges, not candidates for a masters degree in judicial decision-making.

Over the last 25 years, the average length of the term on the Supreme Court has gradually gone down. Consider that one of India‘s greatest judges, Chief Justice P N Bhagwati, served on the Supreme Court for 13 years – a period even longer than his high court tenure. By contrast, judges on Chief Justice S H Kapadia’s court today have an average tenure of a little over five years in office. Further, over 25 years, India’s Supreme Court has had around 129 judges including 22 chief justices. Conversely, the American Supreme Court (whose judges have life terms) in over two centuries has had only 112 judges and 17 chief justices. The increasingly shorter Supreme Court term may have something to do with the higher turnover of Indian Supreme Court judges.



The proposed 114th amendment to the Constitution is a much-needed reassurance for India’s dedicated and persevering high court judges. It tells them that they are no less valuable than Supreme Court judges, that they are as capable, and that they can and must serve in office for as long a period of time. The Supreme Court bar today benefits from the leadership of its octogenarians, and there is no compelling reason why the high court bench should not benefit from its older sexagenarians, who in any event perform comparable legal work on appellate and arbitral tribunals. But at present, the Bill threatens to shorten the length of an already dwindling Supreme Court term of office, and its enactment must either be more fully thought through or followed by a definitive policy on the age at which judges will be appointed to the Supreme Court.

The writer is an associate attorney at a US law firm.

Read more: Protecting the lawgivers – The Times of India

Merits and demerits of ‘outsider’ CHIEF JUSTICE in the High Courts


The article, “Remedy worse than the malady” (September 9, 2010) by six eminent judges on the appointment of Chief Justices of High Courts from outside (instead of selecting the seniormost Judge to the top slot from the same High Court) has evoked mixed reactions. In continuation of our debate on September 13, we carry today comments from experts.

CJ is the very soul of the High Court

THE practice of having Chief Justices from outside is having a negative effect. The Chief Justice is not a computer; he is the very soul of the High Court. A Chief Justice from outside is not even familiar with the names of the advocates practising in the High Court he has been transferred to. How does he function? A local Judge has his own advantages. He knows the Bar. And if there are misunderstandings with some of the members, he is in a position to informally sort them out in the larger interest.

RAJINDAR SACHAR, Former Chief Justice, Delhi High Court

The system has failed to select the best

THE entire transfer policy which originally had a purpose of having one-third judges from some other high courts has totally collapsed and the policy itself has come to an end. The appointment of Chief Justices was part of the transfer policy. The transfer of a CJ from one state to another for a very short period of time is often engineered to bring certain people to the Supreme Court. This is not a correct approach. Puisne Judges should be elevated in their own courts as also to the Supreme Court. There may be puisne judges who are of distinction who may often be overlooked and will not get a chance based on both seniority and merit. Transferred CJs are often unfamiliar with the state and sometimes lose interest, waiting to be transferred to the Supreme Court. Therefore, in qualitative terms, the best Judge familiar with the state is not appointed as CJ of that state. The appointment of CJs has become a merry-go-round which is entirely whimsical and often punitive. This is unacceptable whatever is the laudable purpose of the policy. The present system has neither elevated the best judges to be in command nor produced the best catchment for selection to the Supreme Court. The best method is to equalise the retirement age of High Court and Supreme Court Judges so that all this manipulation and mad rush come to an end.

Rajeev Dhavan, Senior Advocate, Supreme Court

CJ from outside has no enemies

THE transfer policy has both merits and demerits. The person appointed to the post of Chief Justice of a High Court, who is an outsider, does not have friends or enemies, nor does he have any pre-conceived notion. He would not have any senior or a junior with whom he has worked. He does not have relatives nor does he know the relatives of other judges. While these are the merits, there are demerits too. For instance, the CJ does not have personal experience of the members of the Bar practising in the HC which is a handicap for recommending names for appointment as Judges. He doest not know the district court judges — how good or bad they are. The present system is not bad. The problem is one of working the system and everything depends upon the people who are manning the system. In fact, many times members of the Bar are very happy with the fact that the CJ is from outside. He does not have any prejudices or pre-conceived notions about the fellow colleagues, about members of the Bar and about the subordinate judiciary. There are many outside CJs who have come very popular at the new place. Similarly, there are many CJs who have become unpopular. On the whole, this system should be continued subject to improving upon the functioning of the CJs at the new place.

P.H. PARIKH, Senior Advocate, Supreme Court

Judicial Commission, the only panacea

THE issue is complex. Outside CJs are not the most desirable thing. But in the present situation, it is the least of the evils. If we do away with it, we have a larger evil. The six Judges have a point that it is affecting the working in some ways. As against this, having CJs from the same courts would lead to odd situations and this has been experienced in the past. My personal view is that the present system of appointments and transfers may have shortcomings, but it is necessary until we have a proper judicial commission which will deal with appointments, elevations to the post of CJs and transfers and disciplinary action. We need that. Until we get a constitutional body, this ad hoc arrangement will have to continue.

HARISH SALVE, Senior Advocate, Supreme Court

Change the system of appointments

I agree with the views of the former Judges that there is no need for appointing CJs only from other High Courts. CJs from outside don’t know anybody in the court they are appointed and as such they cannot really control the courts. They have to depend on the views of the fellow Judges and it takes time for them to become familiar with the state of affairs.The whole system of appointment of Judges and CJs must be changed. There must be a Judicial Appointments Commission which must be independent of both the judiciary and the government. The Commission should appoint these people, not the Collegium of senior Judges as at present. The entire system must be rationalised with proper criteria laid down allowing total transparency.

Advocate, Supreme Court

The system has merits and demerits

THEappointment of outside CJs in the High Courts has certain advantages and disadvantages too. An outsider will be above local politics, more objective, will inspire more credibility and command greater credibility.But then, he will not have the first-hand knowledge about the suitability of lawyers to be considered for elevation to the Bench. He will not be familiar with the local language and the practices and rules of the new High Court. Unless he is assured of a reasonably long tenure, he cannot make an effective contribution by providing necessary leadership on the administrative side or on the judicial side. Therefore, it is necessary to ensure a minimum tenure of about three years as CJ in the new High Court.To enable the CJ acquaint himself with the new High Court, he should first be posted as a puisne Judge at least for one year. Transferring of CJs of doubtful integrity from one High Court to another High Court should be stopped. Transfers may not help improve the level of honesty. There should be a provision in the Constitution for not allowing a Judge or a CJ against whom there are complaints which are under investigation to function as a Judge. Such judges should be allowed to remain at home for the period during which the investigation/inquiry goes on without any loss of emoluments. The judiciary today suffers from an erosion of credibility. Every step necessary to restore credibility should be taken.

Senior Advocate, Supreme Court

A whiff of fresh air in High Courts

THE infusion of outside judges has brought about a whiff of freshness to the various high courts. No hard and fast rule can be prescribed whether the Chief Justice must be from the same High Court or from outside. But one thing is apparent that it doesn’t take an outside Judge too long to make himself familiar with the local conditions prevailing in the High Court he has been transferred to. It is for this reason that the practice currently being followed is of bringing prospective Chief Justices to the High Courts where they are likely to be elevated in the near future. The transfer of Acting Chief Justice of the Guwahati High Court Justice Ranjan Gogoi to the Punjab and Haryana High Court is an example.

Former Advocate-General, Punjab

The issue deserves a close look

IT was in the eighties that I first discussed the issue of having local Chief Justices. Two senior-most Judges of the Punjab and Haryana High Court had just returned to the city after stints as Chief Justices; and I happened to ask them their opinion on elevating local judges, instead of importing them from the High Courts of other states. Nearly three decades have lapsed since then, but the response is still fresh in my memory. “It doesn’t help” was the answer. For the first time, a retired Supreme Court Judge and five Chief Justices of High Courts have raised the issue at a public platform; and it should be looked into. We have a huge pool of information available from retired judges of the Supreme Court and Chief Justices of the High Courts. Without much ado, an exercise should be launched to seek their opinion. And if they too are not in favour of having Chief Justices from outside, we should revert to the old order of elevating local judges.

Senior Advocate, Punjab and Haryana High Court

The question of commitment

Besides what is written in the article, “Remedy worse than the malady”, the commitment a Judge would have for his court would be missing when he is shifted to another court. Further, the local Judges have much better understanding of how best to achieve an efficient justice delivery system for their state.

Senior Advocate, Punjab and Haryana High Court

Remedy worse than the malady


The exercise of having Chief Justices from other High Courts has not helped matters. The time has come to assess its impact upon the functioning of the judiciary. A former Supreme Court Judge and five former Chief Justices of High Courts call for a critical appraisal

Justice Kuldip Singh, Justice M.S. Gujral, Justice R.N. Aggarwal,
Justice S. S. Sodhi, Justice M.S. Liberhan and Justice S.S. Dewan (retd.)

NOT so long ago, whenever the post of Chief Justice of a High Court fell vacant, whether on retirement, resignation, death or otherwise, the Judge next in seniority would take over as the Chief Justice of that High Court. This long established convention has now become a thing of the past.

The Chief Justice of a High Court is today appointed not from amongst Judges of the same court but from those of some other High Court, keeping in view, of course, their seniority. What presumably impelled this change was to ensure objectivity in the role that a Chief Justice is expected to play.

Inherent in being the Chief Justice of a High Court is his position as leader of the court even though he is often described as being just the first amongst equals. Regardless of this, there are significant functions that lie exclusively within the Chief Justice’s domain which are only for him to perform. Included amongst them being to recommend persons for appointment as Judges of the High Court and to assign or list cases for hearing before particular Benches besides dealing with the administration of the High Court by virtue of being its head.

It has also been seen that even in the matter of control which vests in the High Court over the subordinate judiciary which includes the cadre of District and Sessions Judges, the Chief Justice exercises considerable influence.



The appointment of Chief Justices of High Courts from amongst Judges of other High Courts has been the norm now for almost three decades. The time has come to assess its impact upon the functioning of the judiciary. Has it fulfilled the objectives with which this policy was conceived and put into effect? These are issues that call for a critical appraisal.

Experience shows that when a senior High Court Judge becomes eligible for consideration for appointment as Chief Justice, there is no scope for knowing whether he will get a chance to be Chief Justice as instances are not unknown of occasions when no Judge of a particular High Court was holding the post of Chief Justice of any court while at the same time there being two or more Judges of some other High Court functioning as Chief Justices. In other words, no Judge knows if at all he will be appointed Chief Justice and, if so, when and of which High Court.

It is in such situations that the cult of sycophancy flourishes. Sycophancy, as is well known, can take various forms whether it is courtesy calls on those that matter, be they the Supreme Court Judges, the Union Law Minister or other influential persons or calling them to preside over functions like seminars, conferences or laying foundation stones and the like.

Further, experience has shown that the usual tenure of a Chief Justice coming from another High Court is rarely, if ever, of a long enough period for such Chief Justice, to really get to know the state, its people, their customs and traditions or even his colleagues, the subordinate judiciary, including District and Sessions Judges and the members of the Bar and yet it is with their aid and advice that justice in the state is to be administered.

No wonder, the Chief Justice has perforce to rely upon and follow the advice of some of his colleagues. How good or objective such advice is remains a variable factor. And yet, as pointed out earlier, his is the dominant voice in recommending persons for appointment as Judges of the High Court and also in allotting cases for hearing to particular Benches of the High Court.

As regards the High Court Judges’ appointment, it has to be borne in mind that those appointed will often be dealing with the lives, liberty and property of persons and, what is more, it is from amongst them that tomorrow’s Chief Justices will be appointed. Clearly, much care and discretion is required in the matter of appointment of Judges.

The Supreme Court in the Second Judges’ case (1993) has evolved the collegium system for appointment of High Court Judges. The Chief Justice of the High Court and two seniormost Judges constitute the collegium.The primary source for appointment of Judges is the High Court Bar Association. Almost 60 per cent of the total appointments are made from amongst the practicing lawyers in the High Court. It is thus of utmost importance that the most competent and legally sound lawyers with good practice and possessing unimpeachable integrity be considered for appointment.

A Chief Justice with a year’s tenure or little more in a High Court cannot possibly form his own independent and informed opinion in the matter of selection from amongst the members of the Bar. He cannot justifiably undertake this exercise. He has thus perforce to fall back upon the opinion of his other colleagues in the collegium. Thus, the very purpose of having a Chief Justice from another state is frustrated.

It makes us very sad to hear people referring to the collegium system as no more than a division of spoils implying that the way it works is “you take my man, I take yours” rather than selecting the most deserving.

Turning to the other side of the senior Judge of each High Court being appointed Chief Justice on his predecessor vacating that post, it eliminates attempts at jockeying for the post of Chief Justice as it is known who will become Chief Justice and when. The flaw in this lies in the incumbent lacking or perceived to be lacking objectivity in performing his duties and functions of the office. It cannot be denied that caste, religious and regional factors have, unfortunately, been known to play their role even in the administration of justice. Though not expressly so stated, this appears to have been the underlying idea behind the practice of having Chief Justices from amongst Judges of other High Courts.

Be that as it may, it would be fallacious to assume that all or most Chief Justices would be found suffering from such a malady. If a particular Judge is found to be functioning in an unbecoming manner, appropriate action, whether denial of elevation as Chief Justice, transfer to another High Court or something else could be considered but to resort to the wholesale exercise of having Chief Justices from other High Courts is clearly a remedy worse than the malady sought to be cured by it.

Justice Kuldip Singh is a former Judge of the Supreme Court. All other writers are former Chief  Justices of various High Courts