Courage or Constitution? What do judges need to grant bail?

Do the courts require courage to grant bail to those behind bars or is the Constitution sufficient to empower them to decide such cases?

The Supreme Court on January 27 criticised the Allahabad High Court and a trial court for denying bail to an accused under the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act.

While it is not new for the country’s top court to overturn and even censure the courts below for arbitrarily denying bail to accused, the choice of words in Monday’s bail order is telling.

“We can understand that the trial court declined bail as trial courts seldom muster the courage of granting bail, be it any offence. However, at least, it was expected of the High Court to muster the courage and exercise its discretion judiciously,” the Bench of Justices JB Pardiwala and R Mahadevan remarked.

The Oxford English Dictionary describes courage as “the ability to do something dangerous, or to face pain or opposition, without showing fear”.

Judges often make it a point to state that they do not live in ivory towers - away from those whose lives they decide upon - but it is also known that unlike mere mortals, they enjoy certain extra protections of law to enable them to work without fear and favour. 

Despite that, is it then to be presumed that the country’s judges are under some fear to require “courage” to perform their duty, and that adjudication of bail petitions has become a dangerous task in today’s India? 

But what kind of fear could our judges be facing? The fear of being on the wrong side of the mighty State? 

Given the Central government’s successful acts of stalling and preventing the appointments and elevations of many promising candidates in the judiciary, who could blame our judges for playing it safe? 

When the country’s apex court feels the need to go beyond the usual advice of simply asking the judges to follow the law of the land, it may also need to lay down a new criterion to select the judges in future – the candidates must have the ability to muster the courage to do their job!

Those behind bars for years as undertrials would say that it is not just docket explosion that has keep them behind bars. This truth was acknowledged by the Supreme Court itself when it granted bail to Aam Aadmi Party (AAP) leader Manish Sisodia last year.

“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 top court said then.

Unfortunately, this art of “playing safe” that the judges have learnt is not restricted to denial of bail.

The Umar Khalids and Sharjeel Imams of the world can attest to this, even as their bail petitions remain pending for years together.

All the while, Romeo and Juliet - the protected and anonymised prosecution witnesses in the Delhi Riots conspiracy case - may not get to testify against the accused any time soon, considering the Delhi Police’s bulky charge sheets and attempts to delay the trial.

“This has to end! This needs to end now. It cannot go on endlessly. We cannot give you so much time,” the Delhi High Court said last week, exasperated by the Delhi Police’s endless arguments in the bail petitions of the accused.

While the High Court’s critical remarks against Delhi Police may be indicative of some “courage” of the judges on the Bench, it does not take away the fact that Delhi High Court has failed to timely decide the question of liberty of these accused. 

Some judges who heard the bail petitions have either retired or been transferred. The accused, meanwhile, continue to languish behind bars. 

Just this month, the Supreme Court expressed shock over the Allahabad High Court's delay in deciding the bail application of an accused in a murder case. The bail plea had been pending for the past four years.

Since the Constitution does not seem to be sufficient to empower the judges to freely decide bail petitions in a timely manner, where do they look for the courage to work without the fear? Maybe towards those who were acquitted after years of trial and custody as accused?

Views are personal.