Insightful newsletter of Drishtikone: Issue #177 - Bail is the Rule, Jail is an Exception!

(Photo by MORAN on Unsplash)

“There are certain queer times and occasions in this strange mixed affair we call life when a man takes this whole universe for a vast practical joke, though the wit thereof he but dimly discerns, and more than suspects that the joke is at nobody's expense but his own.” ― Herman Melville, Moby-Dick


Judgment and discrimination are at the heart of every civilizational’s fundamental idea of the divine/god.

Whether it is the Day of Judgment in the Abrahamic religions (which God presides over) or using Vivek (discrimination) between Truth and Untruth to move from darkness (gross) to light (divine) in Sanatan Dharma - this one faculty has been raised to the level of divinity everywhere.

Those who get to a level where they can judge fellow human beings and hope to provide justice - which has in most of human history been the preserve of God or the divine - then one must tread that space very carefully. It is a hallowed place to be. That is why the judges are often equated with God itself.

When such eminences lose trust amongst the populace because facts do not seem to align with the dignity and integrity that such hallowed halls deserve, then society has a very deep problem.

It takes one small doubt for the integrity to go and takes forever to regain it back. In absence of that, one may keep the image of being unapproachable and above criticism by the weight of lawsuits, but justice is harmed irretrievably.


is the crime of the only impeachment, the rule now?

In 1949, Federal Court recommended the removal of Justice Shiv Prasad Sinha of the Allahabad High Court.  He was removed because he was found guilty of favoring a lawyer friend.  The then Chief Justice, K.K. Verma gave him a negative remark and Fazli Ali Commission pronounced him guilty of “misbehavior”. The only judge to have ever been impeached.

The real reason for his removal, many legal luminaries surmised later, was that he was anti-Congress.

CJI Verma, it was said, went along with the government plan in order to help his advocate son become a High Court Judge.  Which did indeed happen!

The allegations against him seem to be almost a regular occurrence in the courts every day. (Source - Justice Versus Judiciary: Justice Enthroned or Entangled in India by Sudhanshu Ranjan)

Granted and rejected bails arbitrarily.  Arbitrariness - or lack of consistency and using discretion was the gravest charge against Justice Sinha.

Let us look into this and see how things have changed in the years to come.

rule of law and lack of consistency

In the State of Rajasthan Vs Balchand alias Baliay judgment, eminent jurist Late Shri Justice Vaidyanathapuram Rama Krishna Iyer ruled - “The basic rule may perhaps be tersely put as bail, not jail”.

Bail is the rule, jail an exception.

And, the High Courts in India have been following this rule, even in the cases of the most dangerous of accusations and charges by law enforcement agencies. Here is a list of some random cases that have been decided by the Indian High Courts where the accused were granted bail.

These were criminals involved in crimes like terrorism, violence, anarchy, and even conspiring with ISI for espionage.

The gravity of the charges by - one would assume - responsible law enforcement agencies, did not apparently weigh much when it came to granting of bail in light of what was the guiding light for the honorable High Courts in the above table.

In these cases, the procedure and the system rules were followed and the decisions were given based on the regular dictum that bail is the rule, jail an exception!

On November 9th, 2020, however, a division bench of Mumbai High Court comprising Justice SS Shinde and MS Karnik rejected Arnab Goswami’s interim bail plea as he was moved back to Taloja Jail which holds some of the most hardened criminals - including those from Dawood’s gang - and are an imminent threat to Arnab’s life!  

The Mumbai HC bench asked Arnab’s lawyers to approach the Alibag Sessions Court, which was asked to rule on the petition within 4 days. “Bail is the rule, jail an exception” did not seem to be the guiding light in this case apparently. (Source)

So, a layman may ask - are the sentences by Indian courts ‘arbitrary’?

While people charged with terrorism can be granted bail, a journalist whose detention is in itself dubious since the case was closed by the honorable courts themselves, is sent to the jail with hardened criminals - does not seem to align with consistent application of the rule on bail given by Justice Iyer.

Interestingly, the Committee on Reforms of Criminal Justice System (the Malimath Committee), a body established by the Ministry of Home Affairs, said the following in its report.

[t]he Indian Penal Code prescribed offences and punishments for the same.  For many offences only the maximum punishment is prescribed and for some offences the minimum may be prescribed.  The Judge has wide discretion in awarding the sentence within the statutory limits.  There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case.  Therefore each Judge exercises discretion accordingly to his own judgment.  There is therefore no uniformity.  Some Judges are lenient and some Judges are harsh.  Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion.  In some countries guidance regarding sentencing option[s] is given in the penal code and sentencing guideline laws.  There is need for such law in our country to minimise uncertainty to the matter of awarding sentence.  There are several factors which are relevant in prescribing the alternative sentences.  This requires a thorough examination by an expert statutory body.[1] (Source)

In fact, in 2008, the honorable Supreme Court itself admitted in State of Punjab v. Prem Sagar & Ors. that there is an absence of judiciary-driven guidelines!

“[i]n our judicial system, we have not been able to develop legal principles as regards sentencing.  The superior courts[,] except [for] making observations with regard to the purport and object for which punishment is imposed upon an offender, had not issued any guidelines.” (Source)

In Soman vs the State of Kerala, Supreme Court again reiterated.

Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice.  There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.

To an independent observer, it would appear that what Justice Shiv Prasad Sinha was impeached for - the ONLY impeachment in Indian judicial history - seems to be the greatest and most rampant weakness of the Indian Judicial system as ruled by the honorable Supreme Court itself!

If there are no guidelines for the Indian criminal justice system, which ostensibly leads to arbitrariness in how the law is addressed in criminal cases, then aren’t we saying that our justice system is compromised in terms of consistency?

India does not have juries, which can introduce subjective differences.

We have the same law, same statutes, same Constitution, and same Supreme Court judgments which the courts have to rely upon.

If, despite that, there is a lack of predictability in sentences for crimes as grave as terrorism - which target hundreds, often thousands of people - versus a farcical case which had been closed by the courts before being reopened only to target an outspoken journalist; then we indeed need to think deeply.

If we have come to a point where the basis for the ONLY impeachable offense in the Indian judiciary history is now being discussed as being the rule by the judiciary itself, then there’s a need for serious, very serious contemplation and reflection!

Have we come to a point where the judiciary needs to be held accountable for the arbitrary nature of its own judgments as the highest court in the land has repeatedly admitted to being the greatest weakness of the justice system it oversees?

The question is - Who bells the cat!

And, that is the problem. The judiciary appointments are controlled by the collegium system, so there is no feedback loop.

Over the years, the mandate and the scope that the courts have taken upon themselves have changed and increased drastically. Can the shielding of the courts in terms of criticism remain the same?

The Supreme Court has evolved the judicial appointment system and enlarged its public interest litigation (PIL) jurisprudence well beyond its original constitutional mandate, effectively converting itself into a people’s court. This new identity requires new rules of accountability, criticism, and feedback, to ensure checks and balances. (Source)

We need a rethink of judicial accountability.

the common man and lack of trust in the judiciary

Meanwhile, the common man has become completely disillusioned by the credibility of the Indian Justice system. A Transparency International study in 2007 found that 77% of the respondents in India believed that the Indian judiciary is corrupt. (Source) Put another way, only 23% of the respondents did not fully agree that the Indian judiciary is corrupt! Less than a fourth of the sampling does not mistrust the Indian judiciary!

Law means “a rule defining correct procedure”. Predictability and consistency is the central precept of the rule of law. When that itself is in short supply, then can we say honestly that we indeed have a rule of law?

That the common man and woman of India do not even believe in the judiciary and cannot even question it directly for the fear of contempt of the courts that they no longer trust (per the Transparency International study), then there is a judicial crisis in the country.

And, we move on pretending that “All is well.”

clogged system and working hours

Justice S J Kathawalla created a record on May 4, 2018, when his court in Mumbai HIgh Court worked till 3.30 AM in the morning, because the summer holidays were going to start from May 5th.  All packed with lawyers, litigants, and court staff as all the matters were moved to urgent hearing.

His court has had worked till mid-night for over a week until then to close on the open cases.  (Source)

This kind of dedication apparently did not go down well with some other peers - even retired ones.  One retired judge said:

"There are judges who have disposed of a large number of matters before 5pm itself. If the judge decides to sit so late, it puts a lot of pressure on the court staff working with him." (Source)

The backlog in the Indian courts is huge and what Justice Kathawalla did was a great gesture in integrity. By some estimates, there are about 33 million cases pending in the Indian courts today. How bad is that? Well, even if no new case is filed from today onwards it is estimated that it will take about 360 years to clear the backlog. (Source)

A large part is played in this by the narrow window during which the courts function during a year.

In 2018, the Supreme Court is working on 193 days, the High Courts are working (on an average) for 210 days and the subordinate courts (on an average) for 245 days. (Source)

This kind of holiday schedule is unheard of in any other sphere. The message this gives in view of the backlogs is quite negative.

As a society, we cannot have a dysfunctional judiciary. We need to do all we can to fix its working, including communicating with citizens that the institution cares for the interests of the citizens. Taking a long break when no other working institution does so does not give the message of an institution that is interested in reforming itself for the benefit of citizens. Rather, it indicates that the courts do not care for the citizens, but care for themselves. (Source)

In India, we have a rather unique situation with the judiciary system.

  1. 360 years of unmanageable backlog

  2. Extensive holidays with a very small window of working days

  3. Lack of consistency in the application of laws and rules

No wonder only 23% of people believe that Indian courts are not corrupt.


Quick COVID check

Early data from Pfizer’s test of its COVID vaccine have shown that its product is more than 90% effective. (Source)

Meanwhile, the total global cases have surpassed 50 million mark!


nota bene

Ram Janmabhoomi lights up on Diwali after centuries: Around 5,000 years ago, Bhagwan Ram returned home on Kartik Maas Amavasya from 14-year long vanvas (exile), and the people of Ayodhya lit diyas to welcome him. For millions of Hindus, Diwali not only connects them to the roots of Sanatan Dharma but also gives them a chance to connect with family members. While Hindu across the world will be lighting diyas, lights, and firecrackers, people of Ayodhya will experience never-like-before Diwali celebrations with over 5.51 lakh diyas in the city. (Source)

Abetment to Suicide by Uddhav Thackeray: Two employees of Maharashtra State Road Transport Corporation(MSRTC or simply ST) have committed suicide within a span of just 12 hours. One of them, in his suicide letter, has blamed the ST corporation and Uddhav Thackeray government for non-payment of dues, reduction in salaries, and irregularities as the reason for taking such a drastic decision of giving away his life. (Source)

Modi and Xi to share platform for SCO: Shanghai Cooperation Organization or SCO virtual summit will take place tomorrow starting at 2.30 pm IST and is expected to last two and a half hours. The summit, being hosted by Russia as the chair of the grouping for this year will see the participation of Indian Prime Minister Narendra Modi, Chinese President Xi Jinping, Russian President Putin, Pakistan's Prime Minister Imran Khan, and leaders of 4 central Asian countries - Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. (Source)

Russian chopper shot in Armenia: Russia said Monday that one of its military helicopters was shot down in Armenia, near the border with Azerbaijan, killing two servicemen. The incident occurred near the border with the Azerbaijan exclave of Nakhchivan. (Source)

China refuses to congratulate Biden: China declined Monday to congratulate Joe Biden as the winner of the US presidential election, saying the outcome of the vote was still to be determined. While incumbent Donald Trump has yet to concede and has launched several legal challenges, many world leaders congratulated Biden and running mate Kamala Harris after the Democrats were declared winners at the weekend and spontaneous celebrations erupted across American cities. (Source)

Free India Legion - Netaji’s Army

Netaji Subhash Chandra Bose raised an army out of soldiers who were not even fighting. He sought and received help from Hitler and the Japanese against the British. After all, for India British atrocities on us - plunder of $45 trillion and over 50 million dead - were the worst in modern human history!

This documentary shares some fascinating details on the Free India Legions - the group that was created out of soldiers who were captives in Germany and Italy. Fascinating watch!

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