Routine denial of bail dents personal liberty

It is not the first time that Chief Justice of India D Y Chandrachud has said that trial court judges are increasingly playing safe by not granting bail, and that they need to apply robust common sense when bail is sought. He reiterated the point recently in Bengaluru as there are increasing instances of denial of bail by many lower courts.

He also said that the High Courts’ failure to grant bail would send more cases to the Supreme Court. He had noted some time ago that the sense of fear among judges of the district courts would render the courts toothless and higher courts dysfunctional. It has also been pointed out that more and more laws making grant of bail difficult are adding to the problem, and bail is no longer the rule.

There are reasons for the lower courts’ timidity in granting bail. Since the High Courts have supervisory powers and control over lower courts, judges in the trial courts are apprehensive about how the High Courts may respond to their orders. Adverse comments and observations may affect their career. But even the High Courts are timid in granting bail. Some weeks ago, the Supreme Court wondered how the Delhi High Court stayed a trial court’s grant of bail to Chief Minister Arvind Kejriwal.

The High Court had described the grant of bail by the trial court a ‘’perverse order.’’ In another case, the top court had criticised the High Court for allowing a stay on bail to remain in force for a year.

While judges should overcome the sense of fear and apprehension, they should also show greater commitment to the idea that individual freedom is the basic right of a citizen. Chandrachud had made a ringing declaration of this principle when he said in a 2020 judgement that “deprivation of liberty even for a single day is one day too many” and called upon the courts to “ensure that they continue to remain the first line of defence against the deprivation of the liberty.’’ 

His statement in Bengaluru found illustration most tellingly within a few days when a Delhi court denied bail to Manuj Kathuria, an SUV driver arrested by the Delhi police on the ridiculous charge of causing the waves that flooded the basement of a coaching centre where three UPSC aspirants died.

A higher court later granted bail when the police admitted that the charge could not be sustained. But no one’s freedom is safe if the police can arrest a person on such silly charges and the court decides that the charges are of a ‘’serious nature,’’ as the magistrate had originally done.