A court in Assam recently granted bail to a man accused of alleged "anti-national activity" on social media. The court issued specific directions to the accused in its bail order, notably asking him to “chant ‘Jai Hind’ 3 times in the morning for 21 days.” The accused, Arif Rahman, has also been directed to record himself saying ‘Jai Hind’ and share the video on his social media.

The accused was arrested in the aftermath of the Pahalgham tragedy, which left tens of civilians dead, after a complaint was filed alleging that he had praised Pakistan using a fake Facebook account. While the case may later take its own course when it goes for trial, the bail order is prima facie flawed and defeats the purpose of procedural fairness.

Objective of bail

Bail is simply the release of a person from custody. Bail does not determine a person's innocence or guilt, but given that a trial takes a long time to conclude, a person cannot be confined to prison for an extended period of time. Additionally, the principle of "presumption of innocence", a core tenet of criminal jurisprudence, lays down that any person accused of an offence is innocent until proven guilty by the state authorities.

Therefore, the burden of proof, particularly in ordinary criminal cases, lies on the state to prove the guilt of a person. Bail also allows the accused to arrange resources for their defence. In a country like India, where the criminal justice system is practically broken, bail becomes a really significant tool in the hands of accused persons.

The Criminal Procedure Code, the erstwhile legislation dealing with criminal procedure, did not define bail but laid down cases where bail was a matter of right and where it was not. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 defines bail as the “release of a person accused of an offence from the custody of law…”.

The conditions imposed for bail can be in the form of a bond or bail bond. Bond is a personal undertaking by the accused to ensure compliance with the conditions attached to the bail, including cooperation with the security agencies, appearance before the court, not leaving the court’s jurisdiction without informing the court or the police, not trying to tamper with evidence or influence witnesses, among other lawful conditions.

In some instances, the Supreme Court has even ruled against surrendering the accused's passport as one of the bail conditions. As can be seen, these conditions do not establish the guilt or innocence of the individual but only ensure his compliance with the conditions imposed by the court.

Ensuring a fair trial

A bail order, such as the one in the Assam case, already establishes a person's guilt. It does not afford him an opportunity to defend his case and challenge the state's view. The order not only defeats the purpose of bail but also undermines the objective of a fair trial. A bail is not a trial that will decide the fate of the case and grant punishment to the accused.

In the Assam case, the judge has practically imposed a punishment on the accused in the bail order itself. The purpose of the bail is to provide a fair trial to the accused and not impose unlawful conditions upon his release. During the COVID-19 crisis, courts across India imposed bizarre bail conditions on accused persons, undermining established legal principles.

In the case of Arvind Patel, for example, the accused was asked to install a television at a local hospital. Similarly, a person was asked to donate to the PM-CARES fund, established by the government during the COVID pandemic, without caring about how the order basically rewrote the principles of criminal justice. Even though the judges possess certain discretion in granting bail, the orders cannot be arbitrary and punitive.

What is more is that the abuse of the criminal justice system leads to prejudice and bias against specific individuals and groups of individuals. As the “public sentiment” surfaces against the so-called “anti-national” viewpoint, the political enemies do not find favour in the judicial process. To force the accused to say ‘Jai Hind’ in public view also reinforces the narrative that Indian Muslims are lesser patriots than other groups living in India and need to prove it publicly.

A dangerous precedent

The Assam bail order is an affront to the criminal justice system and establishes a dangerous precedent for other courts. It feeds into the politics of the day in Assam and serves as an affront to the moral imagination of the Constitution of India, which commits to individual liberty and fairness in justice.

In Rakesh Kumar Paul vs State of Assam and several other cases, the Supreme Court clarified that the terms and conditions of bail ought to be reasonable. Even more unusual is that the conditions are not backed by any law or authority and are imposed at the whim of a judge. In conclusion, the Assam court’s bail order is problematic due to its disregard for the progressive bail jurisprudence and the constitutional principle of fair trial.

Aurif Muzafar is a lawyer and legal researcher based in Kashmir.

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