Stan Swamy Death: Unfair, Unjust, And Now Out Of Time — The Indian Bail RegimeBloombergQuintOpinion
An eighty-four-year-old priest suffering from Parkinson’s disease was arrested and then sent to jail during a pandemic, not because of clear allegations or imminent danger but because of his purported involvement in a conspiracy, one which is still being investigated. During the (almost) nine months of his judicial custody, he was reportedly denied basic amenities in prison, and repeatedly denied bail by different courts, which were more convinced by the hazy allegations of conspiracy than the clear facts of his old-age and infirmity. As posterity will now remember, it was while arguments on his bail plea were still pending, for over a month, that Father Stan Swamy met his untimely demise.
The injustice that the democratic republic of India has dealt to late Father Stan appears singularly unique in its exceptionalism. Even at a time when peaceful protests are labelled as terrorist acts, when comedians are jailed for possibly making incendiary jokes, and when social media ‘toolkits’ are treasonous, the arrest and incarceration of a hitherto-unknown octogenarian priest who could not even hold a glass properly stands a class apart in its systemic brutality. It is no surprise that loud calls of ‘shame’ have filled the public sphere, with fingers pointed at all branches of the state for their purported role played in the tragedy that has transpired before us: The premise of law so fundamentally perverted that the “procedure established by law” premised to safeguard one’s liberty contrived to irreversibly extinguish it.
If there was ever an incident that shocks the conscience, it is this. But do not be misled into thinking that the case of Father Stan was an exception, either because of the context, or the law invoked – the draconian Unlawful Activities (Prevention) Act. This tragedy is symptomatic of a deeper malaise that afflicts our broken, arbitrary, and horribly unjust criminal process.
The cold, hard, truth is that the treatment meted out to Father Stan by the faceless system is the cruel norm when it comes to matters of pre-trial custody and bail.
The Black Box Of Bail Decision-Making
There is a very limited right to bail in India — a large number of offences are classified as ‘non-bailable’, where persons must apply for bail and judges can refuse the request if they think fit.
Indian law almost defiantly maintains the position that the question of bail for accused persons in custody is not decided by simply considering whether the person might flee or obstruct the course of the ongoing investigation/trial. The Law Commission in its 154th Report cited an inexhaustive list of twelve factors relevant for considering bail, such as the gravity of the offence, the nature of the accusations, status of the accused, antecedents, and possibility of tampering. The Law Commission in its 268th Report also included the presumption of innocence as another relevant consideration that judges must be mindful of while deciding bail applications.
Why should untested allegations be determinative in deciding whether a person presumed to be innocent should be released from custody pending trial, as is the standard under UAPA presently, is a question that begs serious consideration. But even if we look past that as an anomaly, we must still face the larger question of how are courts to go about considering this dizzying array of factors while hearing bail applications? The answer is not a structured approach to guide decision-making, but faith in a black box labelled ‘judicial discretion’.
It is a conscious choice to not identify any exhaustive set of factors, as such an approach would unnecessarily fetter the discretion required by courts to decide questions of bail.
Not only is there no standardisation of factors, but nor is there any standardisation of practice. If the police dispute my claim that I will not run away if granted bail, there is no standard of proof spelt out which the police must satisfy to make good its case, and it all boils down to convincing the judge hearing the case. Similarly, while courts have claimed that “deprivation of liberty even for a single day is one day too many”, there are no clear timelines for expeditious disposal of bail pleas, and it is routine for applications to remain pending for weeks if not months.
Trust the judges to strike the right balance, right? Wrong. Placing unbridled power in the hands of any authority only undermines equality and promotes arbitrariness. It is a simple issue, really: the right to personal liberty might surely be influenced by the judge deciding a case, but this approach renders it almost wholly contingent on the identity of that judicial actor and takes us to a place far removed from the rule of law. Justice Krishna Iyer put it pithily when he observed that “Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as on expression of 'judicial discretion'”. Article 21 requires a form of due process to satisfy any denial of personal liberty. Judicial hunches about whether a person should be granted bail surely cannot satisfy this standard, at least if it means anything of substance.
A system of rules alone does not make the rule of law; the values it is designed to pursue defines this structure. Unfettered judicial discretion and balancing interests are not values worth pursuing; values are life and personal liberty constitutionally secured to us, or the presumption of innocence which ensures that we treat each other with the respect and decency which all persons deserve. Such a system acknowledges that it is impossible to balance everything — you cannot balance the presumption of innocence by saying that in some cases the gravity of untested accusations justifies keeping a person in jail for months.
It can preach about the right to life by speedy trial in one case while not even listing bail applications in others. It can speak about harsh prison conditions requiring a re-think about judicial custody being spent in prison whilst consigning a man to jail in the same breath. And, of course, it can justify detaining an eighty-four-year-old suffering from Parkinson’s in an overcrowded prison during a pandemic based on an accusation of a “serious conspiracy” that he was allegedly involved in.
This unguided, unstructured, and horribly unjust system of ours for deciding bail is what directly contributes to thousands of persons losing months, if not years, of their lives to the harsh prison environment while the law declares them to be presumed innocent. It is directly culpable for Father Stan’s demise in judicial custody. It must be taken apart, root and branch, to even give us a chance at preventing others from meeting this fate.
Abhinav Sekhri is a lawyer practising in Delhi who focuses on criminal law and procedure.
The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.