Law Commission bats for victims’ rights in granting of bail

In India, the adversarial system of criminal justice is heavily loaded in the favour of the accused. In all matters- be it granting bail, or even securing conviction, the victim/victims are rarely given a coherent voice by which they can be heard so that a just decision is granted by the courts. This led to Justice Krishna Iyer’s lament in Rattan Singh v State of Punjab (1979)- “It is the weakness of our jurisprudence to have overlooked and ignored the victims of crime in our laws.”

In matters of bail, following the decision of the Supreme Court in the Gurbaksh Singh Sibbia case, the presumption is that “bail is the rule, and jail is an exemption”. But what happens in cases of heinous crimes where the victims are not the only ones suffering- the blows of the offence are dealt against society as a whole? 

Take for instance the Malegaon blasts, Samjhauta Express blasts and other cases of “saffron terror” where the alleged perpetrators, most notably Sadhvi Pragya Thakur and Swami Aseemanand, were released on bail without taking into account what effect it would have on the victims of the crime, and the case as a whole.

In order to rectify this anomaly which imposes upon the victim an eloquent silence, the Law Commission of India in its 268th report released last week, has come up with a slew of recommendations.

Right to bail- why absolute?

The Commission questions the current strand of jurisprudence which prizes individual liberty above all other considerations, even if the alleged crime is a heinous one and has the potential to detrimentally affect large sections of society as a whole.

It advises a note of caution- that “the overtly euphemistic characterization of those accused of heinous crimes may disguise the ground reality. By granting bail to an accused person who poses threat to the justice system and the community at large in an indiscriminate manner and for extraneous consideration amounts to putting the society at a significant risk.”

Noting that 78 per cent of the convicts are in prison for offences punishable with imprisonment of 7 years and above; whereas 57 per cent of the undertrials are in prison on an average for 3-6 months, the Commission urges that it must be considered whether granting bail without restraint and conditions furthers the State’s interest in protecting its citizens, when the premise of citizen protection is at the core of any acceptable version of the social contract. 

Referring to a 2009 paper published in the Chicago- Kent Law Review which deals with the “deadly dilemmas” of bail and crime, it asks : “Under such circumstances, why is the right to bail absolute, while the right not to be victimized by an accused gets no weight in the bail policy calculation?”

Prosecutorial Discretion and Victim Impact Assessment

In 2003, the Malimath Committee report on Reforms in the Criminal Justice System remarked “Victims do not get the legal rights and protection they deserve, to play their just role in criminal proceedings.” (emphasis, supplied) 

With public prosecutors serving as the spokespersons for the victims, the victims’ needs and interests aren’t directly represented before the court. It is here that the Law Commission recommends how prosecutors should carry out their role so that victims’ voices and interests are not drowned out.

Relying on the Australian Law Reforms Commission’s 114th report on Bail and Family violence, the Commission recommends that provisions may be made for intimating the victim of the outcome of the bail proceedings and in particular, if any condition imposed to protect the victim from the alleged offender. One of the principles that should govern bail is ‘the treatment of victims’ especially where a victim who is known to have expressed concern about the need for protection from an offender should be told about the offender’s impending release from custody. 

It enjoins upon the Public Prosecutor to consult the victim and thereafter submit a ‘Victim Impact Assessment’ report wherein any concerns of the victim along with the information on physical, mental, social impact of the crime and the impact bail may have on the victim may be briefly stated. Moreover, following the UK model, the Commission also requires the prosecutors to record all details- such as the history of the arrestee, intention, evidence of violence and other relevant factors, while exercising discretion during arguments on whether bail should be granted or refused.

By recommending measures to assess the risks posed by accused, and questioning the presupposition that bail is a norm, the Law Commission seeks to give victims a more participatory role in the criminal justice system.