Proliferation Of Arrests. Can Statute On Bail Be A Panacea? Experts Weigh In

Personal liberty is considered as the most sacrosanct feature of human existence. Indian Constitution guarantees personal liberty under Article 21. It has been ordained that no person shall be deprived of his right to life and personal liberty except according to procedure established by the law.

As per law settled by the Supreme Court such procedure must pass muster on the touchstones of being just, fair and reasonable. Power of arrest is circumscribed to ensure constitutional compliance.

Recently, the Apex Court in Satender Kumar Antil v. CBI issued specific guidelines with regards to Section 41 and 41A of the Cr.P.C. Section 41 provides for the procedure to be adopted for arrest and 41A prescribes for pre-arrest notice.

The Court also drew attention to the jails in India being flooded with under-trial prisoners, many of whom are charged for offences that are punishable with less than 7 years of imprisonment. 

The Court elaborated on the various aspects of criminal procedure with a distinct focus on the importance of bail. The concept of presumption of innocence also came to be reinforced. The Court remarked that police should bear in mind the principles laid down in Arnesh Kumar v. State of Bihar and should not effect arrests without due compliance of Section 41 and 41A Cr.P.C.

When a criminal case sets into motion in India, an FIR is registered followed by investigation, arrest, police custody and judicial custody. During these upheavals, personal liberty of accused is curtailed. Any law that is enacted will have to take into account all such aspects.

Mechanical Authorisation of Police Remand

When a person is arrested, he is produced before the magistrate who then has to apply his mind to decide whether or not to authorize police remand. Cr.P.C. envisages the Magistrate as the first line of defense of a person’s human right to personal liberty. The mandate to uphold constitutional liberties is cast upon the magistrate while he decides application for police remand. 

Advocate Vrinda Grover, while speaking to BW Legal World said, “In cases where there is a political backdrop to the arrest, the police remand applications and arguments are invariably high pitched and aggressive."

“Unfortunately the colonial idea persists which views the citizen as suspect, and the state as free of all malice and machinations. The magistracy thus often allows police remand, either as a measure of crime control or social control; thereby jeopardising the fragile rights and freedoms of the citizens pitted against the might of the state,” Grover added.

Mechanical authorization of a police remand is an issue which the lower judiciary has to address itself. There are provisions already in place to address that. And there is enough precedential law also for guidelines.

Tanveer Ahmed Mir, Advocate, while speaking to BW Legal World said, “What is necessary for the Supreme Court or the High Courts is to tell the magistrates that you must give reasons for remanding the accused into police custody. Magistrates should not be passing one liner orders like “accused brought in custody, remanded for 14 days.”

Law On Bail And Its Interplay With Special Statutes

Bench of Justices Sanjay Kishan Kaul and MM Sundresh, significantly, threw their weight behind a separate ‘Bail Act’ on the lines of United Kingdom in order to streamline the process of bail. 

Indian scenario is quite different. We have several special legislations in the nature of Prevention of Money Laundering Act 2002 (PMLA), Unlawful Activities Prevention Act 1967 (UAPA), Narcotics Drugs and Psychotropic Substances 1985 (NDPS) that have their own architecture of procedure which is distinctive of the Cr.P.C. 

It is not clear how a separate law on bail will have a bearing on the functioning of special statutes.

Grover said, “…a law on bail will be meaningless when special statutes like PMLA and UAPA are allowed to impose extra-constitutional stringent constraints that effectively negate the right to bail.”

“Article 21 constitutional guarantees must underpin all statutes in letter and spirit. A legislation on bail which does not break the shackles of these special laws will retain the citizen as a subject who’s most basic freedom of liberty is enjoyed only at the pleasure and mercy of the state,” Grover added.

A law that prescribes compensation for wrongful and mala fide arrests, much like a law on bail, also ought to be incremental for the society. It will solidify India's stature as a model criminal justice delivery system. 

Mir said, “Idea of a sound criminal justice system in a robust democracy is not connected with bail. It relates to whether you can do an expeditious trial. If courts can conduct a trial in money laundering, cheating, murder, or a rape case in flat 10, 15, 60 or 90 days, the objective is achieved. The Supreme Court must attack the problem at its core rather than its periphery.” 

"There must be a law which affixes responsibility for failed prosecutions. There must be a compensation regime. We should have a sound regime which mandates that when there are failed prosecutions which result in discharge, state must pay compensation." added Mir.

It will be a welcome step if Supreme Court's observations compels the Parliament to think out-of-the-box.