Given the ease with which a case can be filed in India, especially against men, what does one do, when faced with a false criminal case and the police is hounding an innocent? Naturally, the person would apply for anticipatory bail and thus approach courts.
However, when the very courts use the process of bail as a negotiating tool to facilitate mediation and compromise, it shakes the trust and faith on the judicial system.
Confidare Research, the research arm of Confidare Consultancy, a company that started that first ever community center for distressed and victimized men called as "Confidare India Men's Community Center" has compiled a report on the current practices in bail in criminal proceedings and submitted the same to the Union Ministry of Law & Justice.
A copy of the report has also been sent to the Law Commission of India. The report is titled - "Current Trends and Practices in Criminal Bail Proceedings.
This report elucidates the various flaws and shortcomings in the existing practices of granting bail in criminal cases and how the very process violates fundamental human rights of accused.
It also talks about the impacts of these processes like loss of productivity, subversion of human rights, impediment to Right to Life & Liberty by Constitution, unnecessary and avoidable criminalization, clogged judiciary, overcrowded prisons etc.
The report comes out with a set of recommendations which, if implemented, can greatly smoothen the bail process and disallow the use of legal system as a revenge tool. The recommendations are listed at the end.
The report also touches upon some real-life heart wrenching stories which speak volumes of violation of human rights of accused without trial or investigation.
Case study highlights:
1. Poornalingam Subbiah - A techie aghast of abusive marriage filed for divorce. In retaliation, his wife filed a 498a case on him. He was not only arrested but was also HAND CUFFED like a hard core criminal. He was kept five days in police custody and five days judicial custody tied by a long chain. Cruelty is in his case is not proved yet but he already lost his dignity and prestige to the never ending bail process.
2. Prashant Tyagi - A techie by profession was separated from his wife for two years and after two years she filed a 498a, 307 (attempt to murder) and 377 (unnatural sex) on him. His bail was rejected in spite of getting same day bail order (Amravati) from UP high court. He was behind bars for almost two months. He lost his job and had a tough time to get another job. Meanwhile, his sick parents, who had been hospitalized multiple times last year were dependent on him and he had no means to take care of them.
3. Akash Gupta - Akash, a techie was arrested by Varanasi police from Bangaluru. He was granted bail by UP high court but was not having order due to clerical mistake. He was arrested from his office in Bangaluru and was taken to Varanasi like a criminal.
Above and many cases highlight glaring lacunae and archaic colonial mindset of judiciary in using the bail proceedings as a means to exercise power and authority. Such a mindset undermines the faith of the citizenry in judiciary. In fact, the Bihar High Court, in a recent judgment named "Akhilesh Rabbani vs. The State of Bihar" observed that the practices of lower courts regularly rejecting bails and the same being granted by High Courts. This is nothing short of a scam which can be referred to as "Bail Scam" which thrives on litigant's hard-earned money.
Estimated calculations done by Confidare Research tell us that the bail scam is a huge and over a period of 10 years, it may estimate to roughly Rs. One Lakh Crore (INR 1000000000000) over the entire country. And this estimate is only limited to cases filed under Section 498A (Dowry harassment), not to forget other criminal sections as well.
An estimated 1 lakh crore of bail scam is going on in India since the last 10 years. On an average, in a 498A case, 4 people are accused. The cost of them getting bail, the lawyer fees is Rs. 80000 to 100000. And there are roughly 120000 cases registered every year. This makes the bail scam worth Rs. 10000 crores and over a period of 10 years, it becomes 100,000 crore.
The bail report by Confidare makes the following recommendations
-Bail should be granted even without FIR copy.
-Merits of the case should not be looked into as a routine in order to decide granting of bail.
-Granting of bail should be a norm and not an exception.
-Asking accused to surrender even after granting anticipatory bail should be illegal.
-Judges who send accused to judicial custody on a routine basis upon surrendering before the court should not be promoted.
-The concept of interim bail should be done away with completely and it should form a valid ground as a complaint against a judge for granting interim bail.
-There should be no mediation allowed during bail proceedings.
-Use of bail proceedings as a means to settle the dispute between the parties and strike a compromise should be marked as unconstitutional and illegal.
-Sensitivity programs for judiciary should be conducted from the groups that have raised voice against wrongful arrests and misuse of laws to use the tool arrest as a weapon for extortionary settlements.
- Extra judicial bodies to be setup containing of citizens to take up complaints against judges who subvert the bail process and allow human rights violations during bail proceedings and also contribute to rising number of avoidable under-trials.
11) Habitual practices of putting untenable, harsh and socially limiting bail conditions should be viewed as direct violation of human rights of accused and be termed as downright unconstitutional.
- States like Uttar Pradesh, Uttaranchal, Uttarakhand which are devoid of the concept of anticipatory bail, should be brought at par with other states to reintroduce the concept of anticipatory bail.
-Maximum bail matters should be decided within Sessions/District courts. It is imperative sessions courts and magistrate courts see to it that only in rarest of rare cases, the bail decision goes to appeals in high courts and above.
-There should be a cap placed on the duration of bail matters. Giving unnecessary adjournments in bail proceedings should be disallowed. Bail matter to be decided within one month of the application being filed.
-Media trials should not influence the decision making of a bail matter.
"We have come to know from media reports that the Government is considering tabling a bill on changing the bail process as the current bail process allows a lot of discretion to judiciary. Hence, we have compiled this report and sent to the Law Ministry for their due consideration in improving the bail process and prevent violation of human rights during bail proceedings", says Virag Dhulia, Head, Gender Studies, Confdare Research.