Madan B. Lokur 
Jail, not bail has been successfully championed by the Prosecution completely overturning the lessons learnt by law students and practitioners over several years. A few weeks ago, the Chief Justice of India reportedly said, “People who should be getting bail in the trial courts are not getting it there, as a result of which, they have to invariably move the high courts. People who should be getting bail in the high courts will not necessarily get it, as a result of which they have to move to the Supreme Court.” Is it suggested that some of our judges have forgotten the lessons learnt in law schools? What are the trial courts and high courts expected to decide if the Supreme Court grants bail to an individual but directs that it should not be treated as precedent by the co-accused? This is a troubling question that the Supreme Court alone can answer.
In the meanwhile, despite the presumption of innocence (another casualty these days) citizens continue to languish in jails. “We want justice” is a battle cry still not heard in jails, but maybe, one day, it will. Till then, rights activists (not yet incarcerated) are silently demanding justice for so many ‘State Guests’. It is time, therefore, for the courts to wake up and reclaim their role as sentinels on the qui vive.
Two recent judgments by the Supreme Court give hope that bail jurisprudence will once again be humane and where bail should be given, it will be given. Before referring to these judgments, I would like to submit the trauma being undergone by two accused persons from Delhi, whose bail application has been pending for years in the Delhi high court.
Gulfisha Fatima was arrested on April 9, 2020 for protesting against the Citizenship (Amendment) Act. While in custody, she was arrested for a second time, on April 11, 2020, this time under the draconian Unlawful Activities (Prevention) Act or UAPA for a conspiracy to incite the Delhi riots. Not satisfied with a double engine arrest, she was arrested for a third time on July 28, 2020 for murder. She has been granted bail for the first and third case. In the second case, arising out of FIR 59/20, her co-accused (three of them) were granted bail by the Delhi high court on June 15, 2021 despite being arrested under UAPA. The Supreme Court did not disturb the grant of bail but observed in its order of June 18, 2021, that, “In the meantime, the impugned judgment shall not be treated as a precedent and may not be relied upon by any of the parties in any of the proceedings. It is clarified that the release of the respondents on bail is not being interfered at this stage.”
Why did the Supreme Court say that? Isn’t every order of the Supreme Court a precedent? It’s not clear.
On May 2, 2023, the Supreme Court clarified, “If the co- accused is entitled to a plea on parity, that is for him to make and the court to consider. We want to make it clear at a cost of repetition that the purpose of the interim order dated June 18, 2021 was that the expounded legal position regarding statutory interpretations in a bail matter should not be utilised in proceedings either of co-accused or any other person or any other matter.” Statutory interpretation should not be utilised in other cases? Why? Unfortunately, damage to the fundamental right of personal liberty of the co-accused had already been done. That co-accused is Gulfisha.
Buoyed by her ‘co-conspirators’ getting bail from the high court despite allegations under the UAPA, which was not disturbed by the Supreme Court, Gulfisha applied for bail in the trial court. Not unexpectedly, her application was rejected after several months. She then appealed to the Delhi high court and her appeal was taken up for consideration first on 11.5.2022. Now comes the interesting part, and take a deep breath – her appeal has since been listed in the Delhi high court as many as 65 times without a decision, one way or the other. This might be worthy of a tareekh pe tareekh manifestation or mention in the Guinness Book of World Records. Her appeal was heard and reserved for judgement twice, but was not delivered. On both occasions, the senior judge was recommended for transfer by the Supreme Court collegium as a Chief Justice of another High Court. Therefore, the appeal was released and will now be heard for the third time. In my view, all pending judgments should be delivered before the transfers take place.
Gulfisha has been in jail for four years without being convicted; some of her co-accused in FIR 59/20 were granted bail three years ago; Gulfisha’s trial is not likely to conclude in the near future and even if it does, she can be re-arrested after conviction. Why is she being kept in jail? Isn’t more than four years of jail custody more than enough? Everything seems to be in her favour, except her stars.
The second case is that of Khalid Saifi. He was first arrested on 26.02.2020 and he too has faced triple engine FIRs. In two of them, he was granted bail within a few months in 2020 itself. In the third FIR 59/20 he was arrested on 21.03.2020 and he has been languishing in jail since then. His case has been running parallel with that of Gulfisha Fatima, but poor guy, his case has been listed before the High Court only 59 times over a two-year period.
Aren’t you getting the feeling that in these two cases the mantra is jail, not bail? How does one define justice in these kinds of cases and in all probability, there are many such cases in different parts of the country.
There is now a ray of hope with two judgements recently delivered by the Supreme Court. In the first case – of former deputy chief minister of Delhi, Manish Sisodia – the Supreme Court noticed that his bail petitions have already undergone two rounds before the trial court, the high court and the Supreme Court, which was now dealing with the third round. He was first arrested on February 26, 2023 and had been in jail for more than a year under the equally dreaded Prevention of Money Laundering Act (PMLA). The Supreme Court noted that Sisodia has been in jail for a “long period” of around 17 months and the trial has not even commenced. The Supreme Court reiterated the view that “the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the high court ought to have given due weightage to this factor.” Question: Does more than four years of imprisonment of Gulfisha and Khalid qualify as “long period”?
Equally importantly, the Supreme Court held that, “From our experience, we can say that it appears that the trial courts and the high courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach.” The Supreme Court reaffirmed that, “It is high time that the trial courts and the high courts should recognise the principle that “bail is the rule and jail is the exception”. This is to be treated as a precedent but is anybody listening?
In the case of Jalaluddin Khan, the Supreme Court noted that he was arrested on July 12, 2022 and the trial under UAPA has not made any progress. It was observed that, “When a case is made out for a grant of bail, the courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law.” This rule holds good with the modification that bail can be granted if the conditions in the statute are satisfied. The Supreme Court further observed, “If the courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.” This is also a precedent.
Hopefully the courts will now reclaim their status as sentinels on the qui vive and bail jurisprudence will regains its importance.
Madan B. Lokur is a former judge of the Supreme Court of India.