By Prof Upendra Baxi
The Supreme Court of India (SCI) has been steadily moving towards the idea that all criminal trials should be fair trials. Dragnet security laws such as the Terrorist and Disruptive Activities (Prevention) Act, 1987; the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 and the Unlawful Activities Prevention Act (UAPA) prescribe “rigorous conditions for grant of bail”. But these are now being sought to be disciplined by taking seriously the constitutional fundamental right to speedy trial. Bail rather than jail is emerging as a countervailing consideration for unreasonably prolonged detention. The Indian Constitution abhors the idea of indefinite incarceration, summated in the maxim: “Lock them up and throw away the keys.” It forbids Neanderthal penalty.
The first thing to note is the determined opposition by law enforcement and security agencies who deny and oppose bail all the way from the trial court to the SCI. One must ask why this culture has grown. The second is the nature of judicial response to this bail recalcitrance as a matter of enforcement and security policy.
A number of responses seem available for the police and security institutions. Obviously, overburdened enforcement agencies and operations need considerable time for investigation. No one would deny that integrity of investigation needs reasonable time; nor would gainsay that certain suspects may be incarcerated for some periods of time. Also, complex cases (like money laundering or narcotics), demand a thorough investigation where a considerable number of witnesses need to be examined and forensic evidence needs to be gathered. Some situations may even entail cross-border investigation requiring cooperation among overseas investigatory and other agencies and judicial fora. The gravity of charges to be registered often demands wide-ranging investigation and custodial incarceration of the suspects and even the accused.
Granting all this does not mean that detention for prolonged periods of time during investigation is self-justified. The mere say-so (performative acts or statement or demands by the enforcement authorities) do not instantly and automatically justify “endless investigations”. A determination has to be made concerning “reasonable time”; so has the application of official mind in each case and objective reasons given for the exercise of constitutional discretion.
Whether there exists an internal mechanism determining fair quotients of time is a question of empirical investigation, but pending this, there is sufficient prima facie evidence for the hypothesis that either these are very weak or do not exist. It is notorious that people spend a considerable period of time in custodial institutions even before conviction and often during an appeal against conviction and sentencing. This state of affairs violates the conception of due process and fair trial as postulated by the Indian Constitution and the law.
I do not even present in some detail the “argument” that investigation and prosecution are “political” matters, criminal law is a programme of political vengeance and investigative, bail and custodial processes constitute in themselves the punishment, no matter what the final outcome may be in a wrongful prosecution. This view regrettably held by some bureaucratic or political actors is clearly not the view held by legislatures, courts and the Constitution as a whole. The normative principles of due process investigation, fair trial and bail rather than jail are enshrined in the trinity of the Indian Penal Code, the Criminal Procedure Code and the Evidence Act. These codes are reinforced by the judicial exertions constitutionalising the administration of criminal justice.1
The second concern is writ large in the judicial process of the SCI and High Courts. The Courts have begun to take seriously the judicial invention of the right to speedy trial as an integral aspect of Article 21.2 In Angela Harish Sontakke (2005), bail was granted via Section 43D (5) of UAPA by the SCI signifying an “earnest effort to draw balance between the seriousness of the charges with the period of custody suffered” and the “likely period within which the trial could be expected to be completed”. It “took note of the five years’ incarceration and over 200 witnesses left to be examined”.3 Likewise, in Sagar Tatyaram Gorkhe (2016), an undertrial incarceration for four years and over 147 witnesses yet to be examined justified the grant of bail.
In their decision in KA Najeeb (on February 1, 2021, per Justice Surya Kant, writing for himself and Justices NV Ramana, and Annirudha Bose), the Court found the facts of this case even “more egregious” than some earlier decisions. Not only was the respondent in jail for much more than five years, but “there are 276 witnesses left to be examined” despite the two “opportunities” further given to the appellant NIA, whose list of witnesses was “endless”. And none of the 13 convicted co-accused had been given a sentence of more than eight years’ rigorous imprisonment. It was, said the Court, legitimate that “if found guilty, the respondent too would receive a sentence within the same ballpark”. And since two-thirds of “incarceration is already complete”, bail was justified.
This “two-third” sentence already served, one hopes, does not become the rule! It was presumably not so intended by their Lordships, either. I say this because the grant of bail is as much a constitutional right as a matter of adjudicatory policy. That policy may determine the type of conditions which a bailed person must satisfy, the methods of tendering the bail amount or release on personal recognisance. But the core right must be respected. And this instant decision itself underscores that: “Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.” Of course, the question arises especially in times of Covid-19, but also generally, whether Article 21 assured right to speedy trial tolerates or authorises, in the first place the imposition of suffering “incarceration for a significant period of time”.
I propose that one way of redressing this grossly unjust situation lies in adjudicatory policy itself: namely, no plea for review of any judicial order granting bail may ever be entertained by a reviewing court unless that order is perverse or mala fides. Such a self-denying rule will go a long way in reversing an enforcement culture which remains bail-proof and claims unlimited time for investigation as a natural right.
To confer such a right, by judicial act or omission, is contrary not just to the right to speedy trial but also the substantive due process requirements which are now an integral part of Article 21. As the SCI itself put it: “No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.” Even in the case of special legislation, as noted, the SCI has made some impressive pro-bail strides despite the somewhat rigorous conditions for the grant of bail.
The M. Anathan judgment (January 21, 2021) by Justice GR Swaminathan of the Madras High Court confronted an unusual situation. The Court was unable to grant bail for an alleged offence under the NDPSA as it did not form a view on the guilt or innocence of the accused driver of a truck (owned by his wife) containing a vast amount of ganja. At the same time, the accused was in “no way responsible for the non-commencement of the trial”. There was no judicial stay on the proceedings; nor was any quashing petition filed. There is “no justification whatsoever”, the Court held “for not commencing the trial in time”; already, full “three years have elapsed since the date of petitioner’s arrest”, thus affirming a clear violation of the right to speedy trial reiterated as late as 2008 by the SCI in Pankaj Kumar.
Declining the invitation to “wring my hands in despair”, the learned Justice invented a remedy by directing “the trial court to conclude the trial within a period of three months” of the “date of receipt of copy of this order” and by insisting that the “prosecution has to be called to account”. He ordered the Narcotics Control Bureau/ Prosecution to “pay for its lapse” by paying the wife of the accused “a sum of Rs. 1.00 lakh as compensation within a period of four weeks”.
The Bureau and the prosecution, and indeed all agencies of law enforcement, should internalise this constitutional discipline in an in-house organisational mode rather than adopt a “fly-now-pay later” strategy by appealing this wholesome decision. If appealed, however, the compensation should, I believe, be further enhanced because the Bureau and the prosecution were not at all justified in delaying the prosecutorial action and the amount of one-time compensation was neither a deterrent nor sufficient from the victimological perspective.
Regardless of this, Justice Swaminathan’s order marks a remarkable judicial contribution towards shaping strategies to make the right to speedy trial more effective and for innovating judicial remedies to ameliorate, if not totally displace the enforcement and prosecutorial cultures.
It is on such big and small judicial measures that constitutional values stand reinforced and constitutional futures of freedom, rights, and justice are built afresh and anew for future Indians.4
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1See Upendra Baxi, “Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial’, Journal of Human Rights Commission, 18:1-22 (2020).
2This right was negatived by the Constituent Assembly of India but was read inti Article 21 by the SCI, See, Upendra Baxi The Crisis of Indian Legal System, (Delhi, Vikas, 1982) where I write about Supreme Court Under Trial; Supreme Court and Undertrials.
3See also, Paramjit Singh, (1999), Babba alias Shankar RaghumanRohida (2005), and Umarmia alias Mamumia (2017).
4See also, Upendra Baxi, “Times of Stress and Distress”, India Legal, March 20, 2021.