#dnaEdit: Bailing out convicts

The Karnataka high court’s rejection of convicted former Tamil Nadu Chief Minister J Jayalalithaa’s plea for suspension of her four-year prison term and grant of bail merits a rethink on the norms to be followed by higher courts in disposing such applications. While Section 389 of the Criminal Procedure Code grants much discretion to superior courts in deciding such pleas, relief to convicted persons must not be awarded liberally. Former Haryana Chief Minister Om Prakash Chautala, jailed for 10 years in a teachers’ recruitment scam, allegedly campaigned in the Haryana assembly elections despite getting bail on grounds of poor health. Former Bihar Chief Minister Lalu Prasad Yadav, was granted bail and his sentence suspended by the Supreme Court, 75 days after his incarceration commenced in the fodder scam case, despite the Patna high court rejecting his bail plea. Subsequently, Lalu resumed his political career. In Jayalalithaa’s case, the Karnataka high court has made some important distinctions. For one, the high court has drawn a clear line between grant of bail during the trial stage, and bail after the session’s court has applied its mind on the case and arrived at a judgment. The high court, even while admitting that accused persons with prison terms less than seven years could be considered for suspension of sentence, said the present case involved corruption and equated this with the violation of human rights.

The suspension of sentence and the grant of bail without a detailed look at the merits of the case amounts to devaluing the efforts of trial courts in arriving at a conviction and prescribing punishments. Unless serious miscarriage of justice can be prima facie observed, superior courts must desist from liberally extending this courtesy of bail to persons held guilty. Such bail defeats the criminal justice delivery system and impinges on the deterrence value that lower courts help achieve. The differing standards followed by higher courts also point to the need for guidelines that can help judges act in a uniform manner. Jayalalithaa enjoyed the benefit of bail throughout the trial stage and was allowed to assume an important constitutional post even while facing serious charges. Such concessions during pendency of trial to accused persons, can be, arguably, justified through the “innocent until proven guilty” dictum. But courts also need to do some soul-searching and a course correction on the differential treatment that the wealthy and the politically influential can lay claim to, but is unavailable to the poor. The country’s jails are clogged by under-trial prisoners, most of them with no means to foot hefty bail bonds.

Recently, former Chief Justice RM Lodha turned down Prime Minister Narendra Modi’s recipe for completing trials involving politicians in one year, remarking that all trials must be fast-tracked. The judiciary’s angst at being starved of funds by the political class and the resultant infrastructure crunch found expression in Lodha’s response. However, the perception that accused politicians can delay their trials at will, and accused commoners find their trials delayed for no fault of theirs, is today’s sad reality. Interestingly, in Lalu’s and Jayalalithaa’s cases, the prosecution failed to defend the prison sentences that were hard-won, and acquiesced to their bail pleas. What Lodha and Modi want are not mutually exclusive; rather the ends they proposed can be achieved through small, steady and incremental means. By expediting the appeals of Jayalalithaa, Lalu, and Chautala, the trials involving other politicians, and sanctioning funds for more courtrooms and judges, we can arrive at symbolic and symptomatic steps to decriminalise politics and address judicial delays.