Trial run

The CBI special court that rejected Kanimozhi’s bail application presumably had the full backing of public opinion. The current spate of high-profile arrests,however,highlights a larger debate: pending a verdict,what are the comparative uses of jail versus bail?

The “bail,not jail” rationale that has been upheld by our higher courts is not leniency towards the powerful. The reason why an accused person is placed in custody is primarily to ensure that s/he shows up at the trial,and does not interfere with the investigative process. But it also conflicts with the presumption that a person is innocent until proven guilty and therefore has a right to liberty. Bail is a balance of those two interests. Justice V.R. Krishna Iyer decried the blurriness on the subject of bail in the criminal justice system,the fact that it hinged on a “hunch of the bench”,or judicial discretion. And yet,he persisted,the issue is one of “liberty,justice,public safety and burden of public treasury,all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process”. 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. And in our rush to judgment,we must not elide the distinction between this kind of custody and actual conviction.

However,in recent years,the courts have tended to take a maximalist position on bail. Instead of pressing harder for convictions to go through (because we know that the powerful often end up evading legal consequences),we look to this kind of interim custody for some sense of justice. The rich and the powerful can enlist the best legal assistance to bolster their case,sometimes even from within jail. What’s dangerous is the precedent of mechanically refusing bail and curtailing liberty.