Bail is the rule and jail is the exception: Supreme Court.
Some related suggestions: Milap Choraria
According to one News item published in Delhi Edition of the Times of India dated 8th November, 2008, posted by its Legal Correspondent Mr. Dhannajay Mahapatra, once-prevalent liberal regime – bail is the rule and jail the exception – appears to be on its way back. Except those charged with heinous crimes, all accused should be granted bail, the Supreme Court said on Friday. According to News this move can help de-congest jails, it may turn out to be a push for the revival of the old liberal judicial approach where the accused, in keeping with the doctrine of the presumption of innocence, were released on bail. Making bail the rule and jail the exception is indeed the way to go. In fact, this principle follows logically from the fundamental premise of our legal system that a person is innocent until he or she is proven guilty. Making the refusal of bail rarer, however, must not be based on any attempt to reduce crowding of jails. In cases where the offence is really serious and letting the accused roam free may be harmful to society, it clearly makes sense to deny bail. Similarly, where the chances of evidence being tampered with or the accused fleeing are judged to be high, it would be justified to refuse bail. But, whether bail is granted or denied cannot be a matter of whim. Where bail is denied, there must be substantial grounds for doing so.
There in no doubts that this will help to reduce the pressure, on the Jails and also is in conformity with the prevailed law. Whereas this is also needed to examine the deficiencies in our criminal legal frame work, which allowing criminals to hide the true facts regarding their criminal activities, from the Investigating Agencies / Prosecution, thus under above mention concept they always gets a license of innocent person. This makes our democracy weak, weak and weaker, up to a dangerous level.
I may be allowed to explain this by mentioning one important but comparative example. During 1996 and 2002, I written about 250 articles and most of Hindi Newspapers from India published my Articles. In one such article, I compared (late) Prime Minister Shri P V Narsimha Rao with USA President Bill Clinton. President Clinton was finally forced to give his true and affirmed statement in the Monica Lewinsky Case, though initially for about two years, he obstructed the Investigators, not to call him, on the ground that he is President of the USA . Contrary to aforesaid mandate of the USA law, due to serious deficiencies, in our legal frame work, we were not in position to compel our Prime Minister Shri Narsimha Rao, to make any statement before Court of Law in spite of the fact that several serious allegations were leveled against him.
I have mentioned aforesaid comparison along with one my respective suggestions. Finally, in the year 2001, I compiled my most of suggestions in a Book. Since, in past, I have very bad experiences, from the powerful people, who stolen my ideas, as such, I registered it, under the Copy Rights Act, with the name and style of "A Model of New Constitution for India ". My particular suggestion with regards to amendment in the basic criminal legal frame work, in my aforesaid article were with objects to check and restrain the criminal activities in the effective manner, and to put the check on the police atrocities curbing their privilege to arrest any innocent person in the garb of any crime. This Book is also posted at: http://constitutionindia.tripod.com/
From the Book, my respective suggested which are made compiled as article 17 is reproduced hereunder:
17. Protection against arrest and detention in certain cases.
(1) The Investigating Agency and Police shall detain no person in the custody, if he is arrested for threats to tranquility and peace of the society or national security, without permission from a Judicial Magistrate.
(2) No person shall be arrested, in respect of any crime, already committed, unless he not make or subscribe his true statement within the period prescribed by law, or unless court directs for his arrest.
(3) Nothing in clauses (1) and (2) shall apply in respect of -
(a) any person who for time being is an enemy alien;
(b) any person who is declared as terrorist or likewise offender;
(c) any person who is arrested or detained under any law with necessary Rules, providing for preventive detention.
(d) Without framing and declaration of necessary Rules, provision under clause (3) shall not be applicable.
(4) An Advisory Board consisting of Chief Justice and Two Senior Most Judges of respective High Court, under whose jurisdiction such arrest or detention is made, automatically constituted as and when any arrest under clause (3) is made.
(5) An order of such Board to release such detainee shall be applicable only after expiry of 30 days period of Appeal.
With the aforesaid objectives, I also suggested to amend present article 32 of the Constitution, which in the Statute Books provide a guaranteed fundamental Right of Remedy, where as, in our every day's practical life, we seen that appropriate remedies, are not available to common citizens, since in practice, common man are not given equal opportunities. I also reproduce the suggested Article 21 from the Book, which was aimed to suggest amendment in existing Article 32 of Constitution of India:
21. Remedies for enforcement of rights conferred by this Part.
(1) ….
(2) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part are guaranteed, provided such citizen undertakes, by affirmation on oath that he has obeyed his duties fixed under this Part. (One of the fundamental duty, suggested in articles, have been compiled in the Book under article 12 (3) as: "Making a (True) statement by a person named in any complaint, is his fundamental duty, immediately after knowledge of complaint, in the manner subscribed by the Law in this respect.") (This would impose an automatic check to restrain the criminals from indulging fear free criminal activities.)
(3) ….
(4) The Supreme Court shall issue ambiguity free appropriate and speaking directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be necessary, for the enforcement of the rights conferred by this Part, without diluting the fundamental duties, which shall be effective to curb similar infringement of the fundamental rights in the country.
(5) Any appropriate and speaking directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, issued by the Supreme Court under clause (4) shall be binding as law on the all courts within the territory of Bharat , besides its mandatory obligations for the State.
(6) If appropriate proceedings for the enforcement of the rights conferred by this Part in similar matter, respective High Court having Jurisdiction, shall follow such laws declared by the Supreme Court under clause (5).
(7) The rights conferred under this article shall not be suspended by the State, by Parliament or even by the Supreme Court, even during the emergency, except extreme necessity for the National interests.
In furtherance to various other suggestions, I also made my suggestions about Right to information and justice, which I compiled under article 16 in the Book, in the following manner:
16. Right to information and justice.
(1) Every citizen shall have right to information in respect of every public acts, activities, matters and affairs pertained to governmental functions, agreements with the foreign governments and Companies, Public Limited Companies or Corporations, except part of such informations, which are protected as a matter of technology or highly sensitive with regards to security concerns.
(2) Every Citizen shall have right to get justice. Supreme Court of Bharat in active consultation with the National Judicial Commission and Law Commission of Bharat shall ensure that the justice should be guaranteed, by appropriate procedures based on the Core Principle of the Jurisprudence that justice based on the truth shall be above all, within reasonable time. Such procedures should ensure that –
(a) every citizen shall have right to sue or defend any person or authority or public servant before an appropriate court having jurisdiction, for his rights, titles, interests, claims and disputes, provided he shall come before such court with true facts and without hiding anything at the first hand;
(b) a complainant of a criminal offence shall have right to interfere, in court proceedings, relating to such complaint;
(c) an accused shall have right to defend charges against him, provided he has recorded his own true statement within the time prescribed by the law, regarding the matter in proceeding;
Provided that the cost of the entire proceedings for both side should be born by the looser of the matter, if the judgment is based on the fact(s), and if based on the law or both then no order should be passed as to the cost.
(3) Full Bench of the Supreme Court, in consultation with the National Judicial Commission, and Law Commission of Bharat shall make temporary (except in respect of clause (4) herein) law in respect of the Fundamental duties and Rights, provided Parliament fails to make such Laws within reasonable time, not beyond three years, from the commencement of this Constitution. Such temporary laws shall effective in the manner as if made by the Parliament, till such law is not made by Parliament. In case, Parliament or Supreme Court not enacts any law to this effect, citizen has right to move before Supreme Court, to get justice.
(4) Immediately after commencement of this Constitution, Supreme Court, in consultation with National Judicial Commission and Law Commission of Bharat, shall frame detailed Civil Procedure Code, Criminal Procedure Code and Civil and Criminal Rules and Orders after Law Commission of Bharat shall invite written suggestions from Central and State Governments, High Courts, Bar Associations, litigants and individual Citizen, in an open and transparent manner and submit comprehensive drafts.
(5) Stamp duty for any Court proceedings shall not be imposed in such a manner, which deprive a Citizen's rights to justice.
I am seeking opinions of the readers on the above suggestions.
Milap Choraria
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