Jail, Bail, And Judgment By Adjournment

On Oct. 15, 2020, the Supreme Court dismissed a petition filed by the daughter of Mehbooba Mufti, asking the court to release her mother from detention. Mufti, a former chief minister of Jammu and Kashmir, had been detained after the government decided to abrogate Article 370 of the Constitution, which gave J&K a unique position in India’s federal structure. Despite the fact that Mufti had been detained for a long time, the court held that it was no longer necessary to decide her case since the government had now released her. The Supreme Court’s failure to decide Mufti’s habeas corpus petition in time calls into question the most basic assumptions underlying our liberal Constitution.

One of the fundamental principles of our criminal law jurisprudence is that a person is presumed to be innocent until proven guilty. In other words, a person accused of committing a crime cannot be punished until a court has decided that he is actually guilty of committing that crime. As the famous English jurist, William Blackstone, wrote in his Commentaries on the Laws of England (1765-70), “it is better that ten guilty persons escape, than that one innocent suffer.” An incalculable wrong is done to an innocent person who spends even a single day in prison.

However, these general principles have exceptions. For instance, when a person is accused of committing a crime, the police may arrest him despite the fact that he is presumed to be innocent. An accused person can then file a bail application, asking a court to release him pending the trial. However, despite the presumption of innocence, a court might reject the bail application for several reasons. For example, the court may entertain the view that custodial interrogation is necessary, i.e., that the police will be better able to investigate the case by questioning the accused in their custody. The court may feel that the offence is of a serious nature and that a strong prima facie case has been made out against the accused. It may find that the accused has several criminal antecedents which may make it risky to release him on bail. It may entertain a genuine apprehension that the accused may attempt to influence witnesses or flee from justice if released. However, in the words of Justice Krishna Iyer, absent such circumstances, the “basic rule” is “bail, not jail”.

After all, in every bail case, a court must be cognizant of the fact that an accused person has been put behind bars on the mere apprehension that he has committed a crime – it would be manifestly unfair to keep him there unless a court finds reasons for doing so. It is for this reason that though the official working hours of the Bombay High Court are 11 a.m. to 5 p.m., judges of the court routinely hear bail applications for several hours past 5 p.m.

However, Blackstone’s axiom admits of an even more serious exception. This arises in cases of preventive detention – when a person is arrested not because he is accused of having already committed a crime, but on the apprehension that he may commit one in the future. In other words, our laws actually allow the government to arrest a person for a crime that he has not yet committed and may never commit, merely because the government feels that the detenu may commit the crime if he is released. In such cases, a detenu can challenge his detention by filing a “habeas corpus” petition. Unlike bail applications which can be heard even by subordinate courts, habeas corpus petitions can only be decided by the High Courts or the Supreme Court, which itself indicates how important these cases are. Far more so than bail applications, it is absolutely essential for habeas corpus petitions to be taken up by courts and decided expeditiously, because in these cases, a person is not behind bars because he is accused of committing a crime – he is behind bars for a crime that has not yet been committed.

Here was a person who was arrested on the apprehension that if free, she may commit a crime. The government may or may not have been justified in entertaining this apprehension, but it was incumbent upon the court to decide the legality of the detention as quickly as possible. Even a day’s delay in such cases undermines the liberty of the citizen, which is a cherished ideal under our Constitution. However, the Supreme Court adjourned the case until it was no longer necessary to decide it.

In June 1975, Prime Minister Indira Gandhi declared an Emergency in India. That following year, the Supreme Court decided a case, ADM, Jabalpur v. Shivakant Shukla (1976), which is considered to be one of the low points of its chequered history. In that case, the court decided that Indian citizens have no right to challenge illegal orders of detention by filing habeas corpus petitions during the Emergency. However, even if the court had not decided that case, the Supreme Court would have done as much of a disservice to the citizen of India if it had merely kept on adjourning habeas corpus petitions until after the Emergency was revoked by Prime Minister Indira Gandhi in 1977. If justice delayed is justice denied, then a habeas corpus petition adjourned is a habeas corpus petition decided in favor of the government. By adjourning habeas corpus petitions today and failing to deliver judgment in time, the Supreme Court is exposing itself to the judgment of history.

Abhinav Chandrachud is an advocate at the Bombay High Court. A Marathi version of this article first appeared in LokSatta’s Diwali issue.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.