The harshness perceived in granting Jayalalithaa bail

Karnataka High Court Judge Chandrashekara’s denial of bail to Tamil Nadu former Chief Minister Jayalalithaa in the Prevention of Corruption Act against her came as more than a surprise to many legal pundits and former law enforcement officials like me. Here is a 66-year old lady with quite a few genuine health problems, who was seeking only a temporary reprieve in order to carry her legal battle forward. This was certainly not asking for the moon.

She did not pose any threat of being in a position to dilute the already iron-clad case. All witnesses had been examined, and all relevant documents were in the safe custody of the courts. There is no question of the accused tampering with them, one ground often cited by the prosecution to oppose a request for bail by the accused. Finally, given her track record, there was no danger of her fleeing from justice. She would have been more than willing to surrender her passport to the authorities, if at all she has one. (If I am right she has never travelled outside the country.) Given these facts, when the Public Prosecutor told the court that he had no objection to the court giving her conditional bail, many of us honestly thought that this prosecution stand clinched the issue, and Jayalalithaa would be set free within hours. It is also no secret that the state government found her too hot a commodity to handle, and would have therefore loved to see her leaving Bengaluru. The Public Prosecutor’s volte face in the afternoon, after initially in the morning vehemently opposing bail, seemed no coincidence. 

Justice Chandrashekara’s ruling against bail therefore baffled everyone. Viewed against Justice Krishna Iyer’s oft-quoted saying that ‘bail is the rule and jail is an exception’, eyebrows were raised at the perceived harshness of the order. The burden of Justice Chandrashekara’s song was that the stern message emerging from most of the recent Apex Court's decisions was that public servant corruption amounted to a human rights violation, and had therefore to be dealt with appropriately. 

There are some who believe that the judge should have stuck to the facts placed before him rather than go on a roving mission to ferret out rulings from the Apex Court to justify a decision he had possibly already taken. Many others however hold the opposite point of view that a High Court judge cannot afford to ignore the spirit of recent decisions by the highest court if the land. If he ventured to do so, it was at his peril. 

It is difficult to dismiss either standpoint. One must however salute the courage of Justice Chandrashekara, if one reckons the enormous pressure put on him by the followers of a phenomenal leader, whom thousands in Tamil Nadu worship as a demigod. It is easy to dismiss the frenzy of her admirers as an immature expression of love and loyalty. That would however be fatal to do in a vibrant democracy as ours where charisma is everything,
As we now watch the scene shifting to New Delhi, the Jayalalithaa case grossly exposes the unpredictability of our criminal justice system. Perhaps that is its strong as well as weak point. One thing is certain. The jurisprudence relating to bail will have to be looked into in order to eliminate its obvious subjectivity. We will definitely have to examine specifically whether a judge should enjoy so much discretion. While it may be difficult to legislate for every possibility, there is certainly scope for reducing the role of personal predilections. 

In my view where the applicant has not exhausted his or her right to appeal, and is certainly not a dangerous criminal who, if set at liberty, will physically harm others in society, he/she should have an untrammelled right to bail. It may not also be fair to prescribe a minimum period of incarceration before he or she can seek bail. In any case the Karnataka judge’s order will set a precedent for many others to follow. Again, it is a moot question whether a harsh order refusing bail to an eligible prisoner packs with it sufficient deterrence to make prospective offenders  behave themselves and stick to the virtuous path of law.

The writer is a former CBI Director