Liberty, justice, public safety, and the burden of the public treasury are all at stake when it comes to bail. These principles argue that a developed bail jurisprudence is essential to a ‘socially sensitive’ judicial process, that must take the accused into account as a member of society. The constitutional essence of bail is rooted in Article 21 of the Constitution, which states that liberty may only be curtailed via procedure established by law that is “just, fair, and reasonable.” Simply, it lies in striking an appropriate balance between the two without endangering an individual’s fundamental rights as enshrined in the Constitution as well as cohesion in the society. If we had asked ourselves thirty, even fifteen years ago what the shape of crime would be in 2022, very few would have foreseen the seismic impact of technology, internet, or such other things on crime, from a conspiracy to commit a terrorist act to siphon money via digital means. Fewer yet would have claimed that theft and matrimonial disputes would take up the majority of police time rather than organised crimes or drug menace. Due to the nature of such newer crimes, how personal liberty is treated also differs. This research paper tries to delve deeper into the concept of bail and its operation in certain special laws. This paper also aims to highlight the inadequacies of the bail provisions in these laws.
I. Introduction
It is often emphasised that crime is an unconscionable wrong against society and disrupts the fabric of society.[1] It is in societal interest to find out the accused and try and punish him. In order to do so, his rights need to be curtailed. This is where individual and societal interests come in conflict with each other. The constitutional essence lies in balancing them.[2] The preservation of individual interests is also in the interests of society, thus even if such curtailments are necessary, they must be kept to a minimum in order to protect their individual interest as well as advance societal interests. The fact that accountability and transparency remain present during the process of curtailment contributes to the balancing of interests. As a result, the fundamental values of the constitution—namely, justice, equity, good conscience, reasonableness, and non-arbitrariness, shall prevail in the process of curtailment. These fundamental constitutional principles are omnipresent and form the basis of each and every law. Under no circumstances may it be breached. This is what makes the Code of Criminal Procedure, 1973 a civil liberties document.
Bail is the fundamental component of every criminal justice system that guarantees the accused an equitable trial. Bail generally refers to releasing the accused based on a bond and security. However, it has not been defined in the Code of Criminal Procedure, 1973 (for short “the Code or Cr.P.C.”), except for dividing offences into bailable and non-bailable. According to Blackstone, a person is “delivered or bailed to his sureties upon their offering (along with himself) sufficient security or his presence; he is meant to stay in their friendly custody instead of going to jail.”[3] Furthermore, “Obtaining a person’s release from legal custody by promising that they will show up at an appointed time and location and submit to the jurisdiction and decision of the court” is also understood as Bail.[4] From these definitions, the purpose of bail can be understood to be to save a person from imprisonment, pending conviction if there is only a reasonable doubt about his guilt. It is well known that detention in prison for any reason affects the status of a person and in many ways deprives him of his rights and personal liberty, not to mention his individual dignity. In India, what is primarily imposed on the released prisoner is also the stigma around it as well as social dishonour, even if one tries to reform. One may also observe instances where not only the prisoner but his lineage even up to two-three degrees are barred from all social functions. This necessitates careful examination of these laws and calls for exercising the mighty state’s power sparingly.
Every individual who is held for a bailable offence on the basis of an alleged crime gets bail as a matter of right. If one has been held for a non-bailable offence, he must be produced by the police officer in an appropriate Court, where he has the option to apply for bail. Such a person is granted freedom under the terms of bail once he promises to appear before the Court to answer the charge whenever the court requests or calls him. However, a person may be arrested again if he does not follow the conditions of bail. Furthermore, it is a cardinal principle of criminal law that a person is considered to be innocent until his guilt has been established. The idea underlying the concept of bail is also similar, that an individual accused of a crime does not necessarily have to go to jail or be punished until he has been definitively found guilty in a Court of last resort. The result is that he may be granted bail, not only just after arrest and before trial but also after conviction and awaiting appeal or a review. Furthermore, the purpose of bail is not to deter criminal activity between the time of the accusation and the start of the trial, but rather to ensure his presence in the Court of law so that he can be subjected to trial. Since the goal of bail is to provide guarantees to the Court while also granting the accused their freedom, whether this goal is achieved will mainly depend on whether we are talking about the time before conviction or the time after conviction and while a review is pending. So, this has to be taken into account along with the purpose of curtailment at such a time while discussing the provisions of bail. The Supreme Court of India has laid a foundational legal principle along these lines that “Bail is a rule and jail is an exception.”[5] However, without locating this practice in history, which is where we must turn now, the purpose of bail can never be understood, properly.
[1] See definition of “Crime” by Salmond, Sergeant Stephen, Halsbury’s Laws of England; See also Sir William Blackstone, Commentaries on the Laws of England; State of Haryana v. Anand Kindo and Anr., 2022 SCC OnLine SC 1214, etc.
[2] People v. Defore, 242 NY 13, 24: 150 NE 585, 589 (1926); People v. Adams, 176 NY 351: 68 NE 636 (1903); Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424; Joginder Kumar v. State of U.P., (1994) 4 SCC 260, etc.
[3] William Blackstone, Commentaries on the laws of England, Vol.4, 293-297 (The University of Chicago Press, 1769).
[4] Rakesh K. Singh, “bail is rule, jail is exception”, The Free Press Journal, (Feb. 20, 2021, 08:06 PM), available at https://www.freepressjournal.in/analysis/bail-is-rulejail-is-an-exception (last visited on November 14, 2022).
[5] State of Rajasthan v. Balchand Alias Baliya, 1978.
Background
The early history of bail may be viewed as a guesstimate more or less. Since there was no need for it at that time, it could not have existed when mankind was still in its primitive stage.[1] At that time, justice was delivered in a hasty and hurried manner. The group of elders immediately used to convene into a tribunal and try the criminal without the need for a drawn-out process of evidence or procedure.[2] They were under no obligation to detain the criminal until the case could be resolved. Most likely, the concept of bail may be traced back to a period when the idea of recompense progressively replaced the primitive sense of revenge in many ways.[3] One may claim that bail as a concept was developed as a result of this transition and the adoption of certain procedural practices.[4] However, it cannot be disputed that the idea of bail had an influence on the locals’ way of life, be it under Indian, English, or Roman Law.
In Roman Law, Bail was referred to as “Vindex”.[5] Whenever a citizen was suspected of committing an offence, the magistrate was to interview the complainant and collect pieces of evidence.[6] If the offence was significant, the accused was taken into custody and imprisoned until he could secure a surety, at which point he was freed.[7] The acceptance of the surety was also subject to some limitations since it was stated that “for one of the higher classes, let a man of the better classes be a vindex; for a citizen that is a plain workman, let anyone be.”[8] This suggests that the concept of surety then was primarily regulated in accordance with the rank of an offender.[9] Eventually, this practice evolved in a way that if the surety was unable to locate the offender, he was forced to pay the punishment that the offender was due.[10] However, the inequity of such a process was acknowledged since, in the later Roman Empire, the Preator ruled that, as long as the plaintiff agreed, the offender’s simple promise to show up on the scheduled day and render judgment sufficed.[11] The surety then would lose twice or triple the amount of the claim if the defendant failed to show up.[12] Whatever the case, the law on bail had taken on a cohesive form throughout the latter Roman Empire, and it may be possible that this is where the current laws in Europe originated.[13]
In England, the Laws of Jua contain the earliest reference to this topic, but its development under Anglo-Saxon rule has not left any definite imprint; until the reign of Edward I, when the law on the subject had sufficiently crystallised, little is known about this period, despite the fact that there should have been some development.[14] If we read the outline of English bail legislation, it illustrates how much a subject’s personal liberty can be restricted, particularly when the decision to grant bail is entrusted to subordinate authorities.[15] The myriad limits that were occasionally put in place proved useless, and the Legislature frequently had to step in either to protect innocent people or to hold offenders accountable.[16] All of this shaped the laws of England.
If we look at India, even ancient Hindus had a concept of bail.[17] Similar to Roman law, it was governed by the offender’s rank.[18] The caste system had, however, already been firmly entrenched in India, and except for a few examples found in the Epics, the relatively modern book, or the Puranas, there is little to no information provided on the issue.[19] Compared to Rome, there was less room for expansion here.[20] The King could grant bail to whomever they wished, but since he could administer justice immediately, bail was rarely necessary.[21] Every crime against society was then considered an offence against the god himself and was the target of divine wrath.[22] As a result, there was little room for reform in criminal law, much less the legislation pertaining to bail, as long as the idea of sin was never separated from the idea of crime.
Since then, the concept of bail has evolved drastically, but the ‘whimsical’ aspect of it remains the same. A wide discretion has been vested in judicial officers now, as opposed to the king earlier. Now, if someone is accused of a crime and brought before a Court of law, the discretion lies on the judge either to release him on bail or commit him to custody until it becomes clear that the crime was not committed by him or that the reason he was suspected with, was completely baseless. But, if it appears to the judge that a crime was actually committed by him or there was reasonable suspicion and it is, in some way, directed at the accused, then the law demands (in their wisdom) that such a person should not be allowed to ‘escape’ custody and should instead be ‘protected’ so that he can be brought before the Court whenever it so desires until the mystery that hangs over his head is resolved. However, it must be understood that no authority has the ability to restrict one’s freedom (personal liberty being a fundamental right) unless such power has been granted to it by law, i.e., a procedure established by law.[23] When we view bail from this angle, the right to release someone on bail or uphold the personal liberty of an individual becomes imperative, and this has been very well manifested in the Constitution of India as well.[24]”
[1] T.M. Vedantam, Bail in Criminal Law, Vol. 34 No. 7, 660-675 (Canadian Law Times, July 1914).
[2] Ibid.
[3] Ibid.
[4] Supra note 6 at 662.
[5] Supra note 6 at 662.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Supra note 6 at 663.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid”.
[15] Supra note 6 at 666.
[16] Ibid.
[17] Supra note 6 at 666.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Supra note 6 at 667.
[22] Ibid.
[23] The Constitution of India, art. 21.
[24] Ibid; Even the preamble in the last line says that all the principles given above must ‘promote fraternity which in turn would assure the ‘dignity of an individual’ apart from unity and integrity of the nation. See, The Constitution of India, Preamble.
International and Constitutional Underpinnings of Bail
There are many international instruments and conventions protecting human values which acknowledge the concept of bail. Article 9(3) of the International Covenant on Civil and Political Rights, 1966 (for short “ICCPR”) states a general norm that those people who are awaiting trial should not be put behind bars, rather their release may be conditioned upon a promise to be present at the trial. The same concept has also been referred to in Article 10(2)(a) of the ICCPR, which specifies that an accused person cannot be treated the same as a convict.[1]
The traditional idea of custody of an accused individual is to have an assurance that they will be there to help with the investigation and to uphold the integrity of that by forbidding them from tampering with witnesses or pieces of evidence.[2] This directly contravenes the right to personal liberty as enshrined in Article 21 of the Constitution. Making decisions on the side of the executive or judiciary is already difficult and difficult to make even more so when trying to strike an appropriate balance between the two without endangering the interests of society. The public expenditure of keeping the accused in custody, his safety in jail, and the overall impact of it are the additional factors that play a role while dealing with this concept. The government and the Courts now also rely heavily on bail as a source of revenue.[3] A monetary bond that the accused must present at that time to guarantee his appearance at the trial is one of the contributing factors. Since Courts in India are vested with a lot of discretion, a judge’s own viewpoint or attitude has a significant impact on the outcome of cases. Therefore, there is a very strong likelihood that the human rights of an accused may be violated. So, there have been certain principles of law that have been developed to keep the process fair and transparent. One such principle has been given under Article 14(2) of ICCPR which explicitly establishes the presumption of innocence as a fundamental foundational legal principle. This principle presumes an impartial trial and shifts the burden of proof upon the prosecution.[4] There are more such principles such as the right to a fair trial, right to speedy justice, right to personal liberty, and non-discrimination, that serve as the standard for the State and other authorities.
The golden rule in criminal law jurisprudence is the presumption of innocence and the prosecution’s obligation to show the guilt of the person accused of an offence.[5] The rule that stipulates that bail be the rule and jail an exception is described as “a rational and coherent application of the presumption of innocence to the pre-trial stage.”[6] Article 11(1) of the Universal Declaration of Human Rights, 1948 (for short “UDHR”), Article 6(2) of the European Convention on Human Rights (for short “ECHR”), Article 48(1) of the European Union Charter of Fundamental Rights, and Rule 111 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules)[7] all contain references to this principle.
The Supreme Court of the United States of America in Stack v. Boyle[8] unequivocally determined that the presumption of innocence which is secured after centuries of struggle would lose its value unless this right to bail before trial is protected. In R. v. Hall,[9] the Supreme Court of Canada ruled that the denial of bail has a negative impact on the accused’s right to presumption of innocence and their ability to enjoy their liberty. Therefore, it may be inferred that pre-trial custody that goes beyond what is legally necessary undermines the presumption of innocence of the accused. According to the Supreme Court of India as well, bail will make the presumption of innocence more effective.[10]
Moreover, The Supreme Court of India, in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh[11] made the observation that “Personal liberty, which is deprived when the bail is refused, is too precious a value of our constitutional system recognised under Article 21 of the Constitution.” The personal liberty of an accused or convicted person is vital and is only legitimately limited by “procedure established by law.”[12] The vitality of that human right is summed up in the last four words of Article 21.[13] The Rule of Law under the Constitution of India is seen as an essential weapon to prevent discrimination and arbitrary use of force.[14] If we analyse the current bail system, it appears to discriminate against the poor and the illiterate and mainly depends on economic standing. Bail appears to be treated differently by our legal system in two ways: it is a right for those who can afford it, while for others, a bond is a matter of judicial discretion, which is used to manipulate the amount of “fair” bail that will be needed.[15] A loss of liberty is impending in pre-trial imprisonment because the criterion for determining bail amounts frequently overlooks the accused’s capacity to pay. The financial situation of the accused appears to be the deciding factor for granting pre-trial release.[16]
Every individual is entitled to each and every one of the freedoms and rights outlined in the UDHR without exception, according to Article 2 of that document. The same is reaffirmed in Article 2(1) of the ICCPR, which additionally obliges each member state to respect and guarantee the rights recognised in the Covenant to all individuals within its jurisdiction without any distinction.[17] More crucially, Article 26 of the same instrument guarantees equal protection of the law in addition to equality before the law. As a result, it forbids discrimination based on arbitrary factors such as race, colour, sex, language, religion, or national or political origin.[18] Moreover, when bail is granted or denied based on financial considerations, such as monetary surety, not only Articles 14 and 15 of the Constitution of India are violated but also it runs contrary to the constitutional spirit. Furthermore, it has nothing to do with the goal, which is to guarantee appearance at all trial stages and uphold the presumption of innocence.[19] However, it is important to keep in mind that the state only requires a little amount of assurance that the accused individual will show up for the trial in cases when the impoverished cannot pay bail.[20] The possibility of having one’s possessions forfeited can serve as an effective deterrent to the desire to violate the terms of one’s release.[21] As a result, people with different financial situations would be motivated to appear in court for differing sums of bail. It follows that an efficient system for establishing bail should take the person’s abilities into account.[22] The existing bail system, which is based on objective evaluation and financial supervision, would result in the categorization and discrimination of suspects. It thus would violate the fundamental right to a fair trial.
The fundamental rights to liberty, security, and protection against arbitrary imprisonment are echoed in Article 9(1) of the UDHR and the ICCPR.[23] By virtue of this fundamental right, the state is required to safeguard the freedom and security of its citizens against arbitrary detention and arrest. The detention must be in accordance with the substantive norms of national and international laws as well as the principles and guidelines maintaining fundamental rights in order to be legitimate and not arbitrary. The UN Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment,[24] in particular Principles Nos. 9, 12, 13, and 36 (2) and Rule 3 of United Nations Standard Minimum Rule for Non-Custodial Measures (The Tokyo Rules), contain the right to liberty and right against arbitrary detention.
The Supreme Court of India in Maneka Gandhi v. Union of India[25] determined that the procedure under Article 21 has to be just, reasonable, fair, and equitable. The procedure established by law must be rigorously followed and cannot be changed to the detriment of an individual who will be impacted before a person’s life and personal liberty is taken away.[26] The Supreme Court has issued directives on the rights of the imprisoned individuals in light of Articles 21 and 22 as well in the case of Joginder Kumar v. State of Uttar Pradesh.[27] Similarly, Justice V.R. Krishna Iyer noted in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh[28] that denying bail robs a person of his “personal liberty” protected under Article 21. Granting bail is a huge trust that can be exercised legally, with keen consideration for the cost to the defendant and the wider community. The Court also stated in Rajesh Ranjan Yadav v. C.B.I.[29] that while Article 21 is very important, a balance must be established between the liberty of an individual accused of an offence and the interests of society.[30] In Kartar Singh v. State of Punjab,[31] the Supreme Court made it clear that when the Court designated under TADA denies a request for bail, the High Court’s authority to evaluate the request in accordance with Article 226 of the Constitution is unaffected. It further concluded that Section 20(7) of the TADA Act, which excludes the application of Section 438 of the Code of Criminal Procedure in relation to any case under the Act and the rules made thereunder, cannot be said to have deprived a person of their personal liberty as guaranteed by Article 21 of the Constitution.
One may also argue that the right to a speedy trial is an extension of the right to personal liberty, security, and protection against arbitrary arrest as well as a forerunner to the right to be presumed innocent unless proven guilty. This right is universal and does not depend on any requests made or claims made by the accused. Such an accused has a right to an immediate appearance before the court so that the judge can decide whether the original detention was appropriate and if the accused should be granted bail or not. A detained individual must also be brought before the authorities immediately, according to Article 9(3) of the ICCPR, and detention is not a general rule. The US Supreme Court has placed the right to a speedy trial under close examination and has established that the usual remedy for a breach of this right is the dismissal of the charges with prejudice.[32] In Hussainara Khatoon v. Home Secretary, State of Bihar,[33] the Supreme Court ordered the release of undertrials whose time served had surpassed the maximum sentence allowed for their respective offences, pointing to the Magistrates’ violation of section 167(2) of the Cr.P.C., which calls for the release of the inmates after 60 or 90 days, depending on the offence, and which is mandated by the law. On the subject of the right to a speedy trial, Justice Bhagwati noted that the reason under-trial detainees linger in jail is not that they are guilty but rather because they are oppressed and impoverished.[34] Moreover, the Supreme Court has laid down various guidelines for speedy trial for the Courts in Abdul Rehman Antulay v. R.S. Nayak.[35]
Therefore, in relation to bail, the promise of a speedy trial serves a number of purposes: it protects against abusive pre-trial detention, also the anxiety and public suspicion that come with unresolved criminal charges. It also guards against the possibility of evidence loss and allows the accused to present his own defence effectively.[36] Lack of monetary resources does not exclude a person from exercising their right to justice under Articles 21, 19, and 14 and Article 39A of the Directive Principles of State Policy.[37] In accordance with constitutional principles, the primary goal of the institution of bail is to maximise personal liberty while guaranteeing the appearance of the individual accused of an offence at trial.[38] In order to reflect these fundamental requirements without undermining efforts to promote justice and prevent crime, the Cr.P.C. and other laws (special laws) must be modified.
[1] Article 10 (2)(a) of ICCPR reads: “Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as un-convicted persons.”
[2] Zeenat Ul Kubra, To Bail or Not to Bail, Vol. 1 No.1, 84-89 (Jus Corpus Law Journal, September 2020).
[3] Ibid.
[4] Human Rights Committee, CCPR General comment no. 32, at para 30.
[5] Woolmington v. DPP [1935] UKHL 1; See also Golbar Husain &Ors. v. State of Assam & Anr. (2015) 11 SCC 242 and Vinod Kumar v. State of Haryana (2015) 3 SCC 138.
[6] Christoph J. M. Safferling, Towards an International Criminal Procedure 46 (Oxford University Press, Oxford, 2001).
[7] These rules were recently amended in 2015, the right to be presumed innocent until proven guilty was first found in Rule 84, but in the new rules it is to be found in Rule 111. These rules are also known as the ‘Nelson Mandela Rules.’ See also Nelson Mandela Rules, available at https://www.unodc.org/unodc/en/justice-and-prison-reform/nelsonmandelaruleshistory.html (last visited on 14 November, 2022).
[8] 342 U.S. 1, 4 (1951).
[9] [2002] 3 S.C.R. 309.
[10] Siddharam Satlingappa v. State of Maharashtra, AIR 2011 SC 312.
[11] AIR 1978 SC 429.
[12] The Constitution of India, art. 21.
[13] Ibid.
[14] The Constitution of India, art. 14.
[15] Caleb Foote, “The Coming Constitutional Crisis in Bail” 113 U. PA Law Review. 1125, 1180 (1965).
[16] Anon, Bail and Its Discrimination Against the Poor: A Civil Rights Action as a Vehicle of Reform, Vol. 9 Issue 1, 167-191 (Valparaiso University Law Review, Fall 1974).
[17] UN Human Rights Committee (HRC), ICCPR General Comment No. 18: Non-discrimination, 10 November 1989.
[18] Id; See also Principle 5(1), UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment; Rule 6(1), Standard Minimum Rules for the Treatment of Prisoners.
[19] Caleb Foote, “The Coming Constitutional Crisis in Bail” 113 U. PA Law Review. 1125, 1180 (1965).
[20] 4 Crim. Proc. § 12.2(b) (3d ed.) citing Pannell v. United States, 320 F.2d 698 (D.C.Cir.1963) (Bazelon, C.J., concurring in part and dissenting in part).
[21] Bandy v. United States, 81 S. Ct. 197 (1960).
[22] A. Hellmann, “The Right to a Pauper’s Bail” Bench and Bar, Kentucky Bar Association (2016).
[23] Article 3 reads: “Everyone has the right to life, liberty and security of person…”; Article 9 reads : “No one shall be subjected to arbitrary arrest, detention or exile.”
[24] See the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, available at https://www.ohchr.org/en/instruments-mechanisms/instruments/body-principles-protection-all-persons-under-any-form-detention (last visited on November 14, 2022).
[25] AIR 1978 SC 597.
[26] Bashira v. State of Uttar Pradesh, AIR 1968 SC 1313; See also Narendra Purshotam Umrao v. B.B. Gujral, AIR 1979 SC 420.
[27] AIR 1994 SC 1349.
[28] AIR 1978 SC 429.
[29] AIR 2007 SC 451.
[30] M.R. Mallick, “Bail: Law and Practice” 8 (Eastern Law House, Kolkata, 2009).
[31] (1994) 3 SCC 569.
[32] Strunk v. United States, 412 U.S. 434, 439–40 (1973) (contemplating alternative remedies, but concluding that dismissal must remain ―the only possible remedy).
[33] AIR 1979 SC 1360.
[34] Ibid.
[35] AIR 1992 SC 1701.
[36] Ranjan Dwivedi v. CBI, Through the Director General, AIR 2012 SC 3217.
[37] The Constitution of India.
[38] S v. Dlamini & Ors.; S v. Joubert; S v. Schietekat [1999] ZACC 8; 1999 (7) BCLR 771 (CC).
Legal Provisions of Bail in India
The idea of bail arises from the conflict between the police’s authority to restrict a person’s liberty when he is suspected of committing a crime and the presumption of innocence in favour of the accused. Bail is thought of as a method by which the State forces the community to perform the duty of ensuring the presence of the inmates while also involving the community in the administration of justice.[1] Sections 436-450 in Chapter XXXIII of the Code lays down the laws governing the granting of bail. Offences have been divided into “cognizable” and “non-cognizable” as well as “bailable” and “non-bailable” categories, and are punishable by the Indian Penal Code, 1860 (for short “IPC”). Under the Code, the officer in charge of the police station, the magistrate, the Sessions Court, and the High Court have the authority to handle bail, including the imposition of conditions on bail, cancellation of bail, or anticipatory bail.
Apart from IPC, the Parliament of India has created separate laws to address certain offences. The majority of those laws, including the Railways Act, 1989, Dowry (Prohibition) Act,1961, Narcotics Drugs and Psychotropic Substances Act,1985, etc., take their procedural framework from the Code including its bail provisions. However, there has been a lot of pressure on the State to adopt laws that can cope with these complications as a result of the growth in criminal complexity over the past thirty-forty years. Both the procedural and substantive provisions of the Indian Penal Code were clearly determined to be deficient in numerous areas. As a result, certain special laws that established new offences and specified various trial processes for such offences came into existence. These processes were stricter and even went against long-standing legal principles of procedural fairness and human rights enshrined in the Constitution of India.
The Parliament has enacted several special laws penalising those conducts which were excluded from the IPC such as the Arms Act, 1959, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Gambling Act, 1867, the Excise Act, 1944, the Railways Act, 1989, the SC/ST (Prevention of Atrocities) Act, 1989, the Prevention of Money-Laundering Act, 2002, the Maharashtra Control of Organised Crime Act, 1999, the Unlawful Activities (Prevention) Act, 1967, and many more. The author has chosen only certain enactments and divided these offences into four categories (drugs, terrorism, organised crime, and economic offences) and this research paper would be limited to the operation of bail in their respective legislations only.”
[1] See Vaman Narian Ghiya v. State of Rajasthan, AIR 2009 SC 1362 and Sanjay Chandra v. CBI, (2012) 1 SCC 40.
II. The Narcotics Drugs and Psychotropic Substances Act, 1985 and Bail
The Narcotics Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) was passed as comprehensive legislation to address the issue of drug menace and illicit drug trafficking. Even a cursory perusal of the Act reveals the legislature’s intention to keep the prohibitions and penalties therein strict.[1] According to the NDPS Act, the amount of substance, the seriousness of offence, and the severity of the punishment prescribed by the Act, all go into the decision to issue bail. A few restrictions have also been set forth regarding the authority to issue bail under the Act while keeping in mind the overarching goals of the Act.[2] Section 37 of the Act, in particular, establishes a precise procedure that must be followed in cases involving bail under the Act. But before delving into this section, we must first understand how Court looks at this legislation.
The Supreme Court noted in State of Madhya Pradesh v. Kajad[3] that the goal of the NDPS Act was to reduce the threat of drug trafficking. The Court will have no doubts after reading Section 37 of the NDPS Act, 1985, that a defendant charged with a crime that carries a maximum sentence of five years in prison cannot typically be released on bond. According to section 37 (1)(b)(ii) read with section 35 of the NDPS Act, refusal of bail is the rule, and grant of bail is the exception. According to the NDPS Act, the accused should not be released on bail in major instances since they pose a threat to society and may continue their drug trafficking activities if they are so released.[4] The legal system ought to be used in a way that safeguards
society against criminal activity and antisocial elements.[5]
Now, section 37 is titled “Offences to be cognizable and non-bailable.”[6] This suggests that all the offences under the NDPS Act would be non-bailable and the accused has to move the Court in order to apply for bail. When we read the operative portion of section 37, sub-sec. (1)(b) says that “no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless…” the given twin-conditions are fulfilled. So, it means that in every other offence in the Act, these twin conditions will not be a factor to be looked at while granting bail. However, when we read section 35 of the Act, the culpable mental state of the accused has already been presumed by the Court and it is now on the accused to disprove, that too beyond reasonable doubt that he did not have such a culpable mental state. This defeats the cardinal principle of criminal law, i.e., the presumption of innocence. This factor (presumption of guilt) would also be in play while deciding the bail application (notwithstanding the twin conditions) and the Court would be treating personal liberty with this aspect in mind, which is totally against the constitutional spirit. Furthermore, if we read section 54 of the NDPS Act, there is also another presumption (as soon as the prosecution is initiated) that if an accused fails to account satisfactorily for the possession of illicit articles banned under the Act, he would be presumed to have committed the offence. So, here as well the burden is on the accused to prove otherwise and the Court is sitting with the presumption that he is ‘not factually guilty’ but ‘legally guilty’ as well, which would violate his rights under Article 21 of the Constitution.
Coming back to section 37 twin conditions, that is: i) An opportunity for the public prosecutor to oppose the bail application, and ii) Satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such an offence ‘and’ that he is not likely to commit any offence while on bail. It is important to note that the limitations on granting bail come in only when the question of granting bail arises on merits. If we read Union of India v. Rattan Mallik alias Habul,[7] the Court explained the true import of Section 37. They held that “We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of not guilty. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.”[8] However, this is often ignored while dealing with a bail application. It can also be said that sections 35 and 54 force the judges to presume against the innocence of the accused which in turn affects the merits of the bail application as well as the case.
Furthermore, the Supreme Court ruled in Narcotics Control Bureau v. Dilip Pralhad Namade[9] that “reasonable grounds” refers to grounds more than the prima-facie grounds. They further explained that the phrase “reasonable grounds” refers to the existence of facts and circumstances that are adequate in and of themselves to support the conclusion that the accused is innocent of the alleged offence and is not likely to commit another crime while out on bail. However, this ignores the fact that the guilt of the accused has been presumed already, and by virtue of section 35 of the NDPS Act, the burden is that of ‘beyond reasonable doubt’ and not ‘preponderance of probability.’ Moreover, the matters that are to be decided on merits at trial are being looked at in bail applications, which makes it even more difficult to uphold a person’s liberty.
For offences involving commercial quantities and a few other offences, the pre-trial detention period under the NDPS Act is 180 days.[10] If it is not possible to conclude the investigation within that time frame, the Special Court may, based on the public prosecutor’s report outlining the status of the investigation and the specific justifications for the continued detention of the person accused of a crime after the original period of one hundred and eighty days, extend the said period up to one year.[11] In the case of Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India,[12] the Supreme Court noted that bail under such special laws continues to be inconsistent and unpredictable, which raises questions about whether Article 21 of the Indian Constitution is being violated with regard to the rights of the accused. A statute that bans the Courts from releasing an accused on bail but sets no deadline for the trial’s finish is incompatible with the values of justice and liberty. The Supreme Court has cautioned that such disputes should be resolved quickly on several occasions.[13] Though there is not much proof that these cases are resolved more quickly than the rest. Examples include cases like Achint Navinbhai Patel alias Mahesh Shah v. State of Gujarat[14] or Thana Singh v. Central Bureau of Narcotics[15], in which the High Court refused to grant bail under section 37 of the NDPS Act to a person accused of an offence despite the fact that the trial had been ongoing for eight and twelve years, respectively. Even after taking into account the unique circumstances and complexity that surround drug-related crimes, a 180-day sentence seems very harsh.
It may be relevant to make reference to the Act relating to terrorism (discussed below), which provides that the duration of time required to hold a person without bail is 90 days greater than the period of 60 days specified under 167 of the Criminal Procedure Code, 1973. One may argue that since terrorism statutes, which cover acts more dangerous to society than offences involving drugs, only allow for 90 days of incarceration, confinement in drug-related acts must likewise be equivalent. It appears from this that the State is trying to insert crime control values into the criminal justice system and giving preference to curtailing the liberty of the accused over ensuring due process to him, neglecting the fact that he is also a part of society. If we read these legislations in this line, keeping in mind that the bail provisions are put in there along with the crime control values, it appears that the intent of agencies and state is to promote curtailment and proceed with this mindset or approach that the person alleged of an offence is a convict rather than an accused and make him devoid of principles guaranteed to him by the Constitution. Needless to say, serious drug trafficking offences, however, cannot be permitted to avoid the legal system since this will create a bad precedent and not properly prevent such crimes. So in essence, curtailment must be reasonable (as what is necessary at that time) and transparency and accountability should be there so that the interest of the accused is safeguarded keeping in mind the overarching goal of protecting societal interests.
[1] The objective of the Act was highlighted in Noor Aga v. State of Punjab, (2008) 16 SCC 417. The Court stated “That provisions of the NDPS Act and the punishment provided therein are stringent, flowing from elements such as heightened standard for bail, absence of any provision for remissions, specific provision for grant of minimum sentence…the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but on the other, it is also necessary to uphold the individual human rights and individual dignity as provided for under the UN Declaration of Human Rights…”
[2] The provision under the NDPS Act, 1985 is similar to the provision provided under the UP Gangsters and Anti- Social Activities (Prevention) Act, 1986. See, Dharmendra Kirthal v. State of Uttar Pradesh, (2013) 8 SCC 368.
[3] AIR 2001 SC 3317.
[4] Abdul Hamid khan v. State of Gujarat, 1989 Cr.LJ 468.
[5] Ibid.
[6] The NDPS Act, s. 37.
[7] (2009) 2 SCC 624.
[8] Supra note 76.
[9] (2004) 3 SCC 619.
[10] The NDPS Act, s. 36A (4).
[11] Ibid.
[12] (1994) 6 SCC 731.
[13] Supra note 81; and Shaheen Welfare Association v. Union of India, AIR 1996 SC 2957.
[14] AIR 2003 SC 2172.
[15] (2013) 2 SCC 590.
III. Terrorism and Bail
A state’s first duty is to safeguard its boundaries and defend its citizens and their possessions, according to the social contract theory.[1] Terrorism is a unique crime since it calls into question the nation’s security, peace, and unity. The Prevention of Terrorism Act, 2002 (for short “POTA”) and the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short “TADA”) were both passed to stop terrorism and other disruptive activities (though they have been repealed, it is important to refer to their provisions on bail as well since they form the basis of the new legislation). Section 20(7) of the Tada states that any court, even the designated court, is not permitted to issue anticipatory bail. In addition, the Supreme Court in Usman Bhai Dawood Bhai Menon v. State of Gujarat[2] ruled that the High Court lacks authority to hear a bail petition under sections 439 or 482 of the Criminal Procedure Code, 1973 in those cases where a person accused of a crime under sections 4 or 5 of TADA is placed in jail. However, it was made clear that if the High Court is convinced that there is no evidence to suggest that the petitioner is guilty of any TADA offence and is qualified to have the order rejecting bail set aside, it may entertain a petition under Article 227 against the designated Court’s refusal to grant such bail.[3]
However, without getting into the legality of provisions under TADA, it is pertinent to point out that the Supreme Court, in 1996 found that, out of 9,203 cases reviewed by Review Committee under the TADA, over 85%, 7,968 persons to be specific had been wrongly accused of TADA offences.[4] This shows the fact that personal liberty is curtailed unreasonably in the guise of safeguarding societal interests. The same has been the case with POTA.
The Unlawful Activities (Prevention) Act, 1967 (for short “UAPA”) has been updated to cover terrorism-related offences since TADA and POTA were repealed. According to the law,[5] the public prosecutor has a right to be heard during a bail application, and if the records indicate that there are good reasons to assume that the charges are at least prima-face accurate, the accused individual cannot be released on bail.[6] However, bail was essentially prohibited under POTA and TADA for offences covered by these laws. Keeping this in mind, it is generally argued that Bail is handled more liberally under UAPA than it was under TADA or POTA. It is added to this claim that these laws gave the police a greater deal of authority since they could guarantee that a person would remain in jail at least until the conclusion of the trial by filing a case under these laws.[7] Thus, these laws were repealed by Parliament due to the widespread abuse that these laws experienced. However, a closer look at UAPA would show the contrary.
Section 43D of the UAPA covers the aspect of bail. It is titled “Modified application of certain provisions of the Code” which means that Cr.P.C. is applicable to cases of bail under UAPA, with certain modifications. If we read sub-section (2) of it, it would give a clear picture that the time period to finish the investigation is 90 days. If the investigation is not completed within such time, then the Court may increase it to 180 days, after which the accused can claim bail as a matter of right. Moreover, a conjoint reading of sub-sections (5), (6), and (7) imposes further restrictions in addition to the restrictions under the Cr.P.C. or any other law for the time being in force on granting of bail.[8] These restrictions seem to be not that graver keeping in mind the gravity of the offence involved in UAPA. However, what seems to be problematic is excessive power being given to the State to designate any individual as a terrorist under the Act.[9] Though the act’s constitutionality is challenged before the Supreme Court, a look at it asserts that there is no place for the accused’s personal liberty and he can be confined to the whims and fancies of the State.
Furthermore, membership in a terrorist organisation is punishable in three sections, i.e., 10, 20, and 38.[10] Section 10 is pretty clear in its wording and requires no check per se. Section 38 also requires an intention as a fault element to further terrorist activities in order to constitute an offence relating to membership of a terrorist organisation. However, section 20 reads as: “any person who is a member of a terrorist gang or a terrorist organisation, which is involved in the terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.” Thus, what is punishable here is mere membership of a terrorist organisation (which is involved in a terrorist act, i.e., it need not be designated by the government as one under section 35) and the involvement of the person in a terrorist act is not required. For instance, if an advocate or a human-rights activist becomes a member with an intention of reforming the organisation and bringing it to the right path, he is also punishable under section 20 devoid of his intention. So is the case with a doctor treating their patients who happen to be a member, would be considered as one and the facts and circumstances of him doing his duty would not be taken into consideration. Such excessive powers are totally unconstitutional and could also be factors to curtail an individual’s personal liberty.
A contextual interpretation of the clauses in the Indian Constitution and statutes demonstrates that the State’s first job is the sovereign duty of maintaining the country’s security.[11] However, the reverse burden of proof or bail being automatically denied just because an act is classified as a terrorist can be viewed as a possible manipulative device to justify the government’s actions.
[1] Rousseau Jean-Jacques, The Social Contract 3 (Cole G translator, Reprint, Cosimo Inc, 2008).
[2] AIR 1988 SC 922.
[3] D. Veerashekmaran v. State, 1992 Cr.LJ 2168 (Mad).
[4] The Supreme Court instructed the review committee, established by the Act, to consider the court’s instructions on granting bail while considering the charges brought against the accused. See Supra note 82.
[5] UAPA, s. 43D.
[6] Ibid.
[7] The Supreme Court itself recognized this possibility in Kartar Singh v. State of Punjab, See Supra note 61, when it stated that “we have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA Act with an oblique motive of depriving the accused persons from getting bail and in some occasions when the courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the courts’ authority, invoke the TADA Act’s provisions. This kind of invocation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police.”
[8] UAPA, s. 43D.
[9] UAPA, s. 35 (amended by 2019 Act).
[10] UAPA.
[11] A. Conte, Human Rights in the Prevention and Punishment of Terrorism: Commonwealth Approaches: The United Kingdom, Canada, Australia, and New Zealand 487-88 (Springer, 2010).
IV. Organised Crime and Bail
Globally, an organized crime includes extortion, human trafficking, labour racketeering, the smuggling of weapons and narcotics, and other criminal activities. Even if criminals are apprehended or released on the strictest bail conditions, a criminal organisation continues its operations. The Court acknowledges that these organizations have a compelling motive to continue operating. It goes without saying that these people and organisations are a danger to the community since they engage in murder, violence, and threats. Therefore, the Maharashtra Control of Organized Crime Act, 1999 was enacted (for short “MCOCA”), which also contains strict bail requirements. MCOCA is also extended to the State of Delhi and serves as the template for laws of a similar nature in several other states.”
The bail restrictions under TADA and MCOCA are identical.[1] No anticipatory bail is allowed to accused who are tried for offences under MCOCA. Bail is covered under section 21 of MCOCA which is totally identical to section 43D of UAPA. Additionally, MCOCA allows for up to 90 days of pre-trial imprisonment. The Special Court may extend the period up to one hundred and eighty days if the investigation is not finished within this time frame, based on a report provided by the public prosecutor outlining the investigation’s status and the precise justifications for the continued detention after the initial 90-day period.[2] This is the same as that in the UAPA. Further, there are special rules of evidence that presume the accused guilty,[3] which again is totally against the Constitution and is just a manifestation of crime control values as discussed by Herbert Packer,[4] which in the researcher’s view hampers the due process safeguards ensured by the Constitution to the accused. Furthermore, excessive power of arrest has been given to authorities which is pari-materia to that of UAPA.
According to the ratio in Chenna Boyanna Krishna Yadav v. State of Maharashtra,[5] the authority to issue bail under MCOCA is subject to the requirements set forth in Section 21(4) of the Act, which is in addition to the requirements set forth in Section 439 of the Cr.P.C. According to Section 21(4) of the MCOCA, the prosecution has to be given a chance to be heard in case of bail applications. Only after the Court is convinced that there is a reasonable ground to believe that the person accused of an offence is innocent of the charge and is not likely to commit another crime while free on bail, can bail be granted. These prerequisites are cumulative rather than an alternative, which makes getting bail totally impossible, given the presumption of guilt in place. In Dattatray Krishnaji Ghule v. State of Maharashtra,[6] the Supreme Court held that it was not required to carefully consider the evidence in order to determine if the appellant has committed the alleged offences when determining whether to grant bail under MCOCA. The Supreme Court established the criteria for bail under the MCOCA, holding in Ranjit Singh Brahmajeet Singh Sharma v. State of Maharashtra[7] that relief would not be allowed unless the judge is certain that a conviction is not likely, which is a very high bar. Therefore, such greater conditions that are to be met in order for bail to be granted under such unique legislation, totally vitiate even the thought of personal liberty.[8]
[1] MCOCA, s. 21.
[2] MCOCA, s. 21.
[3] MCOCA, ss. 17 and 22.
[4] Hebert Packer, Two Models of the Criminal Process, Vol. 113 Issue 1, 1 (University of Pennsylvania Law Review, November 1964).
[5] 2006 AIR SCW 6384.
[6] AIR 2007 SC 1133.
[7] AIR 2005 SC 2277.
[8] Donald W. Price, “Crime and “Regulation”: United States v. Salerno” 48(3) La. L. Rev. 743 (1988).
V. Economic Offences and Bail
After 1992, there were reports of a number of frauds that cost the economy thousands of crores of rupees in damages. The 2G fraud, the Satyam scandal, the UTI scam, the Fodder scam, and the Harshad Mehta scam are just a few examples. Since 1992, economic frauds have cost the nation 73 lakh crore rupees. The Indian economy lost almost Rs. 6,600 crores in only 2012 alone.[1] Economic offences harm the nation’s economy as a whole and impair its expansion, progress, and ability to compete internationally. Additionally, it undermines international stability, financial integrity, and national trust. Thus, legislation like the Prevention of Money Laundering Act, 2002 (for short “PMLA”) becomes important. Thus, bail provisions under the act would also be stringent. This importance as well as the distinction for bail in economic crimes have been discussed by the Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal & Anr[2] and the Court remarked that the entire society is aggrieved if the economic offenders are not brought to the books as they affect the entire economy. These remarks show the approach with which Courts look at personal liberty in economic offences.
Section 45 of the PMLA deals with the power of the Special Court to grant bail. Here as well, the twin conditions of bail are there and it is in pari-materia with the discussion held above. What differs here is that if two persons are accused of an offence under section 4 of PMLA and another statutory offence under the IPC, respectively and the trial is being conducted jointly, then the other person would also be subjected to the double test scrutiny under section 45 as well. Moreover, here as well presumption of guilt is there under sections 22, 23, and 24 of the Act and all the anomalies related to this follow as discussed above.
The constitutionality of section 45 of the PMLA has been challenged earlier in Nikesh Tarachand Shah v. Union of India[3] which was overruled in the recent case of Vijay Madanlal Choudhary v. Union of India.[4] In brief, this case that challenged the provisions of the Act dates back to 2014, when the director of Zoom Developers Pvt Ltd, Vijay Madanlal Choudhary, challenged certain provisions of the PMLA Act. Subsequently, around 200 petitioners filed around 80 petitions challenging various provisions of the Act. In Nikesh Tarachand Shah v. Union of India,[5] the Supreme Court declared the ‘twin conditions’ of bail to be unconstitutional being violative of Articles 14 and 21 of the Constitution of India. However, in Vijay Madan Lal Choudhary,[6] the court overruled Nikesh Tarachand[7] upholding the validity of the PMLA Act maintaining that “money-laundering has been regarded as an aggravated form of crime “world over” and hence twin conditions not unreasonable”. This, in the researchers’ view, needs reconsideration and the old law settled in Nikesh Tarachand Shah[8] must be declared a good precedent, in its review. Moreover, the last Chief Justice of India, U.U. Lalit, after retirement, endorsed the view taken by retired Justice Rohinton Fali Nariman in the Nikesh Tarachand Shah[9] that struck down Section 45(1) of the PMLA Act. However, to the contrary, the Supreme Court upheld the PMLA’s harsh requirements in Vijay Madanlal Choudhary,[10] which in turn diminished a number of citizen rights and the legal safeguards against administrative overreach. The bench led by Justice A.M. Khanwilkar ruled that the PMLA’s stringent provisions for property attachment and property arrest are both constitutional and free from arbitrary decision-making, supporting the ED’s jurisdiction under such provisions. Many of the PMLA’s provisions have come under fire for departing from accepted legal standards and guidelines that the court had previously set in decisions. Therefore, there is yet hope that the next judiciary (bench) would take decisive action to right this clear error and relax some of the harsh PMLA’s restrictions. One can only hope that, after the review petitions have been heard and a decision has been rendered, the sentinel on the qui vive will uphold the decision it made in Nikesh Tarachand Shah.[11] In this backdrop it is important to briefly understand this case as well.
In the case of Nikesh Tarachand Shah v. Union of India,[12] the Court took into account numerous possibilities that may occur in the event of a combined trial with a bail application. It then supported the petitioner’s argument and came to the conclusion that section 45’s provisions would be discriminatory when applied to a defendant being tried for a scheduled offence with a sentence of more than three years along with an offence under the PMLA as opposed to a defendant being tried for an offence solely under the terms of the PMLA. In the first scenario, factors unrelated to the PMLA offence would determine whether bail was granted; in the second scenario, bail would be given in accordance with Section 439 of the Code.
According to the Court:[13] “All of these examples demonstrate that the application or nonapplication of Section 45 would produce results that are manifestly arbitrary, discriminatory, and unjust, and would directly violate Articles 14 and 21 in that the bail procedure would change depending on whether a person is being tried for an offence that also happens to be an offence under Part A of the Schedule or an offence under Part A of the Schedule along with another offence. Of course, a factor unrelated to the crime of money laundering would determine whether bail was granted. Section 45 would have to be declared unconstitutional for violating both Articles 14 and 21 of the Constitution because it is manifestly arbitrary and provides a procedure that is neither fair nor just.”[14]
Another reason the Court gave for declaring the provision unconstitutional was that it would be inconsistent with the goals of the PMLA and the granting of bail for offences committed under the Act to classify scheduled offences according to their sentencing. As a result, the section must be repealed in accordance with the equal protection clause. The Court also believed that section 45 created an anomaly between anticipatory bail and regular bail, which would produce manifestly arbitrary and unjust outcomes and would thus violate articles 14 and 21 of the Constitution.[15] It must be said at this point that though such crimes affect society, curtailing personal liberty unnecessarily is like an anathema to the basic tenet of democracy, for it erodes the faith of people in the system.[16]
[1] N. Gurnani, Economic Scams in India, Academic, Apr 2015.
[2] AIR 1987 SC 1321.
[3] (2018) 11 SCC 1.
[4] Manu/SC/0924/2022.
[5] Supra note 105.
[6] Supra note 106.
[7] Supra note 105.
[8] Supra note 105.
[9] Ibid.
[10] Supra note 106.
[11] Supra note 105.
[12] Ibid.
[13] Ibid.
[14] Supra note 105.
[15] Ibid.
[16] Niranjan Narayan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642.
VI. Conclusion
It has been noticed that the majority of special laws concern serious and heinous crimes and have detailed and strict rules surrounding the granting of bail. It is impossible to overlook the fact that some of these special laws discussed above operate under distinct standards and goals. These laws overpower the crime control values on its established due process principles. The presumption of innocence, which has been regarded as sacred and the cornerstone of criminal law and even construed as a human right by the Supreme Court, is inverted, as is clear from the terms of the special legislations. These legislations thus need to be relooked at and should be made in consonance with the spirit of the Constitution.
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