Jail,not bail?

The CBI court has reserved the bail petitions of the DMK’s Kanimozhi and four others until November 3. The accused in the 2G case have so far been denied bail,with “bail,not jail” principle repeatedly repudiated.

To insist on bail as the default is not to soften consequences for the powerful,but to affirm civil liberties and reduce arbitrary detentions,especially for common citizens who do not have access to the same legal assistance,and given the glacial pace of our investigative processes. A person is innocent until proven guilty,and has the right to personal freedom until they are actually convicted — that is a foundational principle of our constitutional and criminal jurisprudence. It is expected that an accused person would be kept in custody only when there is a reasonable anxiety that they may evade the trial,or tamper with the evidence and influence the investigation. Far too often,however,the process seems to have become the punishment. Perhaps because clinching convictions are so rare,pre-trial detention has almost become a way of delivering illusory comfort and satisfying some dim intuition of justice. However,this kind of scapegoating undercuts the very basis of the legal process,which insists that guilt must be assigned at the end. In the 2G spectrum case,for instance,the CBI’s charges have already been framed: now,evidence must be weighed,and the judicial process should go forward at full speed. The focus should be on strengthening the case and pressing for effective convictions.

Justice V. Krishna Iyer once deplored the fact that bail decisions were still laden with discretion,often based on a “hunch of the bench”,rather than being informed by clear criteria. The Supreme Court has laid down guidelines that keep in mind the person’s stakes in the system,their ties to the community,and if there is no substantial likelihood of them not showing for the trial,they suggest that the accused be let off on a personal bond. This principle extends far beyond the influential accused in the 2G case. Our jails are crowded with undertrials,deprived of their liberty before the question of culpability or guilt has been settled,even as the judicial process drags its feet. Many other countries provide for electronic tracking,a cost that is more than offset when you consider the larger burden of keeping them in jail. To extend pre-trial incarceration beyond reason is deeply problematic in a liberal society.