BAIL MUST BE THE RULE, NOT AN EXCEPTION
is a near axiomatic rule so pronounced in the landmark order in State of Rajasthan v. Balachand, AIR 1977 SC 2447, of course with the rider, “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.” Normally our first-instance courts take into consideration prima facie allegations and then even routinely order for the remand in judicial custody of the accused on their first production, consigning their pleas of innocence/requests for release on bail, to the ‘discretion’ of the courts in various tiers in the course of criminal proceedings, which can stretch for years. Even the above dictum of Justice Krishna Iyer bases upon the longstanding rule of our criminal jurisprudence, a legacy of the colonial rule, of the presumption of innocence of the accused until their guilt is proved beyond all reasonable doubt. And this editor did not find any discussion of the matter linking it to the basic or fundamental right of the accused to life and liberty (Article 21) and/or his freedom of movement and association (Article 19) in that decision. However, it is comforting to find such linking to Article 21 in the relatively recent Sanjay Chandra v. CBI, (2012) 1 SCC 40, decision of our Apex Court. In contrast, we find that the European Court of Human Rights, generally looks up such matters from the angle of their Convention Article 5 basic rights, which can be found in the Buzadji decision published in this issue; further, that Court clarifies that such right exists right from the time of first production of the accused. Hope our courts too begin to look up this grave matter primarily from the angle of human rights to liberty, etc. rather than relegate it to their merciful discretion. Here, the ASJ Sri Dharmender Rana, New Delhi, who boldly granted bail to Disha Ravi standing in favor of personal liberty and stating categorically that “[the alleged] 'Toolkit' reveals that any call for any kind of violence is conspicuously absent. In my considered opinion, Citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies. The offence of sedition cannot be invoked to minister to the wounded vanity of the governments,” deserves a big Kudos from all of us. Further the very sedition clause in the IPC, often misused by the power-intoxicated governments, needs to be repealed altogether – which, by the way, has been a sort of our ‘national demand’ evolved during our freedom struggle. §§§
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