Right To Bail Under The Whip Of Covid-19
The right to bail is a method to ensure the fundamental right to liberty of
the citizens. It arises out of the solemn vow of the criminal jurisprudence to
presume the innocence of the accused unless otherwise established. The
preservation of this vow has been engrained in the provisions relating to bail.
The courts in India have always been regarded as the sole guardian of the
fundamental rights guaranteed to the citizens. The global pandemic affected
almost each and every service in the country as well as across the globe. It
landed up a plethora of services to stagnancy. Like every other service, the
legal service too, has been a victim to this. The dismissal of the regular
operations of the Courts all over the country have posed a great challenge to
the courts to deal with the heaps of cases pending before them. Adding to this
it has also limited the courts to take secure several statutory rights of the
citizens of this country.
However, an even grave concern before the courts in these times has been whether
the fundamental rights of the people could be allowed to capitulate to the
pandemic? The citizens owe a huge thanks to the Hon'ble Courts of this country
for it were them who cleared this cloud of doubt and provided for the systematic
clearance thereto. The apex Court of this country along with the cooperation of
different High Courts paved a path for the Courts at the grassroot level to
ensure that these rights to the people are not gasped.
As the process of virtual courts caught pace the courts have, to some extent,
been able to discharge their duties towards the citizens with the same vigour as
was done normally.
However, as far as the bail is concerned, it has been observed that there have
been many instances where, the courts have been unable to dispose of the
applications for regular as well as default bail owing to the discontinuance of
the normal procedure of working.
To this, the Hon'ble Supreme Court has recently cautioned the courts in India
against showing any lackadaisical approach in dealing with matters of bail. The
Court, while dealing with the case of Arnab Manoranjan Goswami v. The State of
Maharashtra & Ors., has reminded the other courts of this country that they are
the sole guardians of the fundamental rights of the citizens. The Court has also
made it clear that right to liberty is a sacrosanct right and it is the bounded
duty of all the courts to strive towards saving this right from being diluted.
The court has drawn inspiration from the dictum of Hon'ble Mr. Justice Krishna
Iyer, whereby, the learned judge had opined that the basic rule of criminal
justice system is �bail and not jail'. The Hon'ble Court has opined that this
principle must be brought into practice by the courts in India.
The apex Court has always regarded district courts as the most important kingpin
of the entire criminal justice system. It is the court of first instance which
can provide instant relief to the people at the grassroot levels. It is through
these courts that the people get the earliest and the easiest opportunity to
knock the doors of justice. It is the lifeline of the effective judicial process
In the present case, the Court has highlighted the role of subordinate judiciary
in the matters of bail. The Court has opined that the district judiciary is
wrongly referred to as subordinate judiciary. It may be subordinate in hierarchy
but it is not subordinate in terms of its importance in the lives of the
citizens of this country. As far as the matters of bail are concerned, it is the
first ray of hope for the citizens who need immediate relief. It is therefore
imperative for the district judiciary to ensure an effective disposition of the
bail applications at the initial stage in a way which thumps the fundamental
right to liberty of the citizens.
Talking about the bail in general, the Hon'ble Court opined that the remedy of
bail is the solemn expression of the humanness of the justice system. It is
through this instrumentality that the criminal justice system's primordial
interest in preserving the presumption of innocence finds it's most eloquent
The court also quoted from Lord Denning's speech to emphasise the degree of
priority which is a want for the bail matters. In his speech Lord Denning had
said that when the counsel says
�My Lord, I have an application which concerns the liberty of the subject, the
Judge will forthwith put all the other matters aside and hear it.'
The Court has also reminded the Hon'ble High Courts of their duties toward the
people. The Court in its judgement opined that the flooding up of cases in the
Supreme Courts occur when the High courts do not grant bail and anticipatory
bail in cases falling within the parameters of law. The Court highlighted that
NJDG(National Judicial Data Grid) is a significant tool to help the courts to
keep a heck over the pendency of cases as well as applications for urgent relief
before them. The Court emphasised on the active use of this facility by the
courts so as to cater the need of expeditious justice to the people.
The Court, in it's concluding remarks, reflected its expectations with the
courts of the country to exhibit acute awareness to the need to expand the
footprint of liberty and to use this decision as a touchstone while taking
decisions in bail matters.
At this point, it is quintessential to mention that it is not the first time the
Court has talked so extensively about the provisions of bail. The Hon'ble Court
has time and again laid stress upon the need for expeditiousness in the method
of disposal of bail applications in a manner which serves the cardinal
principles of the criminal justice system.
It is also pertinent to summon one of the earliest pronouncements in this regard
has been made by the Hon'ble High Court of Allahabad in Emperor v. H.L.
Hutchinson, whereby, the court opined that the principle which ought to be
deduced from the statutory provisions with respect to bail is that grant of bail
is a rule and its refusal is an exception. Since then, this opinion has been
reiterated and elucidated in a plethora of cases by the Hon'ble Supreme Court of
India on several occasions.
However, this recent remainder of the Hon'ble Court has appeared as a beacon of
hope for all those undertrials who may be undergoing detentions for the want of
disposal of bail applications. It has rescued the fundamental rights of the
people from slipping into the darkness of uncertainty. It has also streamlined
that regardless of what may be the situation, the Hon'ble Courts of this country
would always continue to be the flagbearers of the fundamental rights of the
citizens of this country.
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