Supreme Court’s compassionate turn on bail raises hope for undertrials

By Bharat Dogra 

On May 18, in a highly welcome step, the Supreme Court of India expressed serious reservations about various aspects of its earlier judgment in January refusing bail to former JNU student leader Umar Khalid and co-accused Sharjeel Imam, including the effective foreclosure of their right to seek bail for a year. At the time his bail plea was rejected, Umar Khalid had already spent over five years in prison as an undertrial.

Beyond its immediate implications in raising hopes of justice for several undertrial prisoners, this self-correction by the learned judges also raises hope for democracy itself, especially at a time when the self-corrective capacities of democracies have been declining even in mature democracies of the West, as well as in India.

On May 18, a Bench of Justices B.V. Nagarathna and Ujjal Bhuyan observed that bail remained the rule even in cases related to the UAPA, or the Unlawful Activities (Prevention) Act. This observation came in the context of a judgment granting bail to a citizen from Jammu and Kashmir who had remained incarcerated as an undertrial under the UAPA for five years.

Justice Bhuyan, who authored the judgment, stated that the principle of bail being the rule and jail the exception is a constitutional doctrine flowing from the fundamental rights to life, speedy trial, and freedom from arbitrary arrest and detention.

Justice Bhuyan further observed that the basic principle that a person is presumed innocent until proven guilty is the “cornerstone” of any civilized society governed by the rule of law.

The learned judge stated: “Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge the accused on bail… The presence of statutory restrictions… per se does not oust the ability of the courts to grant bail…”

These highly welcome observations have raised hopes that they will lead to the granting of bail to many other undertrial prisoners who have languished in jail for long periods despite there being a strong case for their release.

In particular, there is reason to adopt a compassionate and considerate approach towards young people who, in moments of youthful excitement or anger, may have committed certain indiscretions but are otherwise known to be largely law-abiding and peaceful. Some among them may also possess a strong commitment to justice and social change, and, if given a fair opportunity, they may go on to make valuable contributions to society.

In such cases, it may be worthwhile to take families into confidence and, where families undertake responsibility for ensuring law-abiding conduct, such individuals may be granted bail or even complete relief through the withdrawal of cases, particularly where no serious crimes have been established despite prolonged incarceration extending beyond a year.

Beyond opening the doors of justice in several such cases, the Supreme Court’s recent observations should also be welcomed in the broader context of democratic self-correction. In recent years, even mature democracies in the USA, Europe, and India have often hesitated to undertake corrective action even when it has become overdue.

The courageous and compassionate stance taken by the Supreme Court of India, with its strong emphasis on the constitutional spirit of justice for all, should inspire similar approaches elsewhere as well. It sends an important message that timely self-correction is a sign not of weakness, but of courage and a deep commitment to justice and democracy.

---

The writer is Honorary Convener of the Campaign to Save Earth Now. His recent books include Protecting Earth for Children, When the Two Streams Met, A Day in 2071, and Planet in Peril