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In a refreshing move, the apex court followed the principle of free and fair trial in giving bail in the Chidambaram case and showed that investigative agencies too need to be responsible and disciplined

By Prof Upendra Baxi

The Supreme Court of India is always clear that decisions regarding bail are not to be considered mini-trials on the merits of the case. This salutary principle is based on the principle of fair trial and avoidance of trial by the media. This was recently reiterated by the Court in Dilip K. Basu (2015) and NHRC v State of Gujarat (2010). Free and fair trial decisions constitute the very basic “jural postulates of a civilized society” (as Dean Roscoe Pound reminded us constantly).

Justices R Banumathi, AS Bopanna and Hrishikesh Roy make it clear (in the latest Chidambaram case on October 22, 2019) that any reference to the merits of the matter in the bail judgment shall be construed as an “expression of opinion only for the limited purpose of considering the regular bail in CBI case and shall not have any bearing in any other proceeding”. This reiteration upholds the principle of free and fair trial. At the same time, in a rather refreshing departure from some prior decisions, the present pronouncement signifies that the law of the land now requires the highest constitutional discipline and responsibility from all investigative and enforcement agencies as well as by lawyers representing the government. Vague and general statements, unsupported by material evidence, on behalf of the prosecution or investigation will no longer defeat the grant of a “regular” bail.

The High Court of Delhi had (by its impugned judgment dated September 30, 2019) refused to decline bail to Chidambaram on two grounds given by the CBI: flight risk and tampering with evidence. However, the single-judge upheld the third ground—influencing witnesses—and denied bail. The High Court first held that the appellant was not a “flight risk” and this could be prevented by other effective means (by issuing certain directions like “surrender of passport” and “issuance of look-out notice”). It also held that “there is no possibility of the appellant tampering with the evidence” because the “documents relating to the present case are in the custody of the prosecuting agency, Government of India and the Court”. However, later the Court upheld the objection of “tampering with witnesses” saying that “the investigation was in an advance [sic] stage and the possibility of the appellant influencing the witnesses cannot be ruled out”. Nothing, of course, can ever be fully “ruled out”, but does that mean the concerned Justice must not elaborate the reasoning rather than announcing merely the result? This again shows why ideally, on matters of individual liberties, no High Court bench should comprise single Justices.

Undeterred, the flight risk argument was pursued in the apex court by the learned solicitor general who linked “flight risk” to the general category of “economic offenders”. The Court declined this strategy saying “we are unable to accept the contention…that ‘flight risk’ of economic offenders should be looked at as a national phenomenon” and that it “be dealt with in that manner merely because certain other offenders have flown out of the country”. It added that no “straight-jacket formula” should help deny bail “to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case”. The caveat apart, in future, the question of “flight risk” must be decided only on an individual basis, being uninfluenced by unconnected cases, because “personal liberty is involved”. The apex court also noted that no flight risk is involved here “more so, when the appellant has surrendered his passport and when there is a lookout notice” already against him.

Even more astounding is the allegation of witness tampering. The “evidence” for this was submitted in a sealed envelope to the High Court, which mer­ely ruled that this possibility “cannot be ruled out”. And the fact that the investigation was well-advanced seemed to justify bail denial.

The apex court differed substantially from this stand of the High Court and granted bail. The Supreme Court noted that the “FIR was registered by the CBI on 15.05.2017” and the “appellant was granted interim protection on 31.05.2018 till 20.08.2019”. Until that date, “there has been no allegation regarding influencing of any witness by the appellant or his men directly or indirectly”. Nor has such an allegation been made in “the number of remand applications”. Indeed, “there was no whisper that any material witness has been approached not to disclose information about the appellant and his son” (the co-accused). It “appears that only at the time of opposing the bail and in the counter affidavit filed by the CBI before the High Court, the averments were made” that “…..the appellant is trying to influence the witnesses and if enlarged on bail, would further pressurize the witnesses….” But no “material particulars were produced before the High Court as to when and how those two material witnesses were approached’’. No “material witnesses” nor any details were made “available as to when, where and how those witnesses were approached”.  In the result, the appellant was enlarged on bail.

A just result, you would say rightly. But please recall that not every bail-seeker in the country is himself a senior counsel of long standing and represented by such eminences as Kapil Sibal or Abhishek Manu Singhvi, who can persuade the Court that this ground was a well contrived “after-thought”. Recall also that even now, the judgment has not a single remark of impropriety (let alone judicial stricture) against the investigating authority. And if it is freedom-enhancing, it is only so because the word “freedom” makes a solitary and fugitive appearance just once in the entire apex court discourse.

All the same, this decision still must be hailed as historic because it reiterates and reinforces for co-trial bail proceedings, the law declared as early as 1978 and 2001 and in Kalyan Singh (2005). Why this should not be followed by the investigative agencies raises several distinct but related questions: Does it betoken deliberate non-compliance with reiterated judicial rulings? Are the agencies not interested in an equitable investigation instead of merely giving primacy to an expeditious investigation? Also, are the agencies more concerned with coercive custodial mode of investigation rather than a culture that respects the values and norms of the due process of law? Does this claim for autonomy of investigation amount to, in the real lives of those thus investigated, a claim for immunity, and even impunity, from even a modicum of constitutional discipline?

The reasons why precious national adjudicative time is still taken away by all sorts of allegations and arguments are to be decoded but there is no doubt that these deserve no further adjudicative dignity. Henceforth, all such matters should be summarily governed by the law this case finally declares.

The law has been that vague and irresponsible “arguments” for coercive custodial investigation by or on behalf of investigative agencies will not do because co-trial bail is the rule and jail is an exception.

No doubt, the Supreme Court itself seems a house hermeneutically divided. For the most part, it regards grant or refusal of bail as an ongoing aspect of the administration of criminal justice and the decision is only subject to a matter of case-by-case decision liable to shifting judicial policies, often subject to a snakes and ladders type of adjudicatory approach.

On the other side is the judicially robust enunciation by Justice Krishna Iyer in Moti Ram, 1978 which regards bail as a matter of Article 21 rights to life and liberty. These, the apex court has both the power and the duty to preserve, protect, and promote by virtue of the right to constitutional remedies under Article 32.

It is high time that the Court decide, once and for all, between the two views. As I have observed in the Epilogue to Taking Bail Seriously: The State of Bail Jurisprudence in India (Salman Khurshid, Siddharth Luthra, Lokendra Malik and Shruti Bedi, ed; Gurugram, LexisNexis, 2019), a clear and firm beginning will underscore the speedy advent of core human rights in the administration of criminal justice while promoting more efficient and equitable investigation of crimes of the powerful.

Perhaps, freedom is best protected when we also transfer to bail jurisprudence what poet John Donne insightfully and famously wrote in l624: “Any man’s death diminishes me, because I am involved in Mankind. And therefore never send to know for whom the bell tolls; it tolls for thee.”

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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