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[Webinar Alert] CAN Foundation and RMNLU Lucknow to host online lecture on "Bail & Jail: The Rule and the Exception"

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Webinar on "Bail & Jail: The Rule and Exception" hosted by CAN Foundation and RMLNLU commences.

Advocate Gaurav Sharma giving an introduction of the speakers and moderators.

RMLNLU Vice Chancellor, Dr. SK Bhatnagar begins his welcomes address.

In the last few years, we have witnessed lot of media hype around arrests and bail: Dr. Bhatnagar

Liberty under Article 21 is codified by the term 'personal'. When we see it in the backdrop of Articles 20 and 22, it is clear framers meant physical liberty: Dr. Bhatnagar.

I am not going too much into it, says Dr. Bhatnagar and hands over the session to moderator to Supreme Court AoR Amit Anand Tiwari.

Tiwari asks Justice Siddharth Mridul about personal liberty and bail.

Justice Siddharth Mirdul begins with the history of bail jurisprudence.

It is not that in ancient times personal liberty did not exist. Of course it did, says Justice Mridul refering to an Ashokan Rock edict on personal liberty and role of King.

Even in Kautilya's Arthashastra it is stated that only rule of law can guarantee liberty and security: Justice Mridul.

Protection of liberty has been considered as a fundamental duty of the State in many civilizations: Justice Mridul quoting John Stuart Mill.

Cyrus the Great is best know as the liberator of Jews who had been incarcerated in Babylonia by Assyrians: Justice Mridul.

He is known for discovery of this cylindrical object called Cyrus cylinder. In that cylinder is inscribed duties of the King and rights of the subjects: Justice Mridul.

So even as far back as 3000 years, there were enlightened individuals who thought about rights and liberties of individuals: Justice Mridul.

I will now come to how personal liberty evolved in Britain.

The Magna Carta came about as a result of conflict between subjects and King John: Justice Mridul.

King John ran into troubles with his subjects and as a result of loss in battlefield, he had to promise his subjects rights as a result of which this great charter came about: Justice Mridul.

It became the foundation for contemporary principles of parliament and remedies like Habeas Corpus. It gave rights to subjects against illegal imprisonment: Justice Mridul.

Later Blackstone's commentary on the same inspired the American Constitution: Justice Mridul.

Justice Mridul now comes to Indian context and the growth of Article 21 of the Constitution.

The manner in which the right was expanded immediately after independence really laid the foundation for the freedoms we enjoy today: Justice Mridul.

The Indian Constitution begins with Constituent Assembly Debates. Dr. BR Ambedkar's draft said life and liberty cannot be deprived except by a due process of law. But the due process did not find a place in the Constitution: Justice Mridul.

But anyways we moved ahead and read due process into Article 21: Justice Mridul.

The concept of bail as a Constitutional safeguard for protection of liberty emerges from the conflict between police power and presumption of innocence in favour of the accused: Justice Mridul

Canadian Supreme Court has said denial of bail has detrimental effect on presumption of innocence and personal liberty: Justice Mridul.

In summation, I must point out that bail is necessary because detention is to ensure the accused's presence during trial. If that presence can be ensured without detention, then it is not advisable to deny bail: Justice Mridul.

Right to bail today is a Constitutional recognition of personal liberty and an extension of presumption of innocence: Justice Mridul concludes.

Often when granting bail, court imposes conditions including sureties. I have found that at Tihar many are not able to secure bail because they are unable to furnish securities. Does economic status impact liberty? Amit Anand Tiwari asks Justice Mridul.

No two answers to it. Not only for bail, even outcome of trial has been impacted due to economic status of accused. That is why we are trying through Legal Services Authorities to ensure that the accused gets the best representation at the trial: Justice Mridul.

The Supreme Court has also said that imposing economic sanctions as condition to secure appearance for trial impairs liberty and access to justice in a country where lot of people impoverished: Justice Mridul.

I would not say this process is discriminatory. However, I do agree that it does impact fair and impartial trial: Justice Mridul

Therefore, we must take initiatives to ensure that fair trial of economically weak are not impacted due to lack of financial security: Justice Mridul.

Courts must, therefore, carefully consider the financial situation of applicant before grant of bail: Justice Mridul.

CEO of CAN Foundation, Siddharth Gupta releases CAN Foundation's magazine, 'Chandragupt' which sets out accomplishments of the foundation during the year 2020.

Moderator Vidhi Thaker asks Senior Advocate Sidharth Luthra whether certain statutes makes standard of bail different from normal benchmark for bail.

Luthra says most such special conditions have been upheld by Supreme Court. The only exception is PMLA, says Luthra.

What is the effect of such restrictive conditions? What does a person do to seek bail at a stage where he / she is under investigation? Luthra

The practical reality in most of these cases is that people generally do not come out on bail in such cases and it is a matter of concern: Luthra.

We are increasingly shifting burden of proving innocence to the accused: Luthra.

The reverse burden clauses are also being increasingly used in foreign jurisdictions and it is definitely here to stay: Luthra.

The consequence of this is we are filling jails with undertrials which goes against Constitutional mandate: Luthra.

Many of these offences, how are they different from IPC offences, asks Luthra. Do these reverse burden work to the benefit of society, are they rational?

The Parliament has to look into it: Luthra.

Though they have been upheld by Supreme Court, we need to ask ourselves the question does it really serve its purpose and reduce crimes? My answer is no and the numbers show it: Luthra

Vidhi Thaker asks Luthra about impact of media trial on courts of first instance and how grant of bail is influenced by the same.

What happened as a consequence of Vishnu Pandit case was there was a chilling effect on grant of bail: Luthra.

The fact is we have gone through an overall situation in this country where grant of bail has been adversely impacted at trial court stage: Luthra.

I do tell judicial officers that they need to consider granting bail and cannot keep clogging High Courts. We are pushing the burden upwards: Luthra.

When I started practice, high court used to be the last resort for bail. A bail matter hardly used to go to Supreme Court. But now I can say 1/8 of my practice is in Supreme Court: Luthra.

Madhya Pradesh High Court judge, Justice Atul Sreedharan commences his address.

While we say bail is rule and jail is exception, the reality is entirely different: Justice Sreedharan.

Vishnu Pandit raised a ruckus in Delhi but here (MP) it is the rule: Justice Sreedharan.

There are judicial officers who tell lawyers 'look you have a very good case, why don't you try your luck in High Court'": Justice Sreedharan.

One of the foremost sources of ba jurisprudence is Universal Declaration of Human Rights and Articles 1, 3 and 9: Justice Sreedharan

Justice Sreedharan refers to Arnesh Kumar judgment and how police takes a person into custody at the drop of the hat.

To understand why Police works that way, we can see police is overworked with very few personnel. I am again speaking in the context of Madhya Pradesh: Justice Sreedharan.

Referring to a particular district of population of 12 lakh, he says there are 700 police personnel.

They have to look into law and order, investigation of crimes and also give pilot and security to immortals like me: Justice Sreedharan.

We speak about Sentinel on qui vive. Sentinel on qui vive is not the Supreme Court, it is the judicial magistrate: Justice Sreedharan

The Preamble says "to secure liberty". If State itself violates liberty, then option is to approach courts. But then question is how soon can a person reach a court? Justice Sreedharan.

Justice Sreedharan refers to an instance when inquiry was initiated against a judicial officer for granting anticipatory bail.

If we crush the confidence of lower judiciary then they won't grant bail: Justice Sreedharan.

Amit Anand Tiwari asks Justice Sreedharan on principles governing anticipatory bail jurisprudence.

I would go to Gurbaksh Singh Sibbia's case which is legendary and the principles laid down in that judgment holds the field even today: Justice Sreedharan

Majorly when we are granting or denying anticipatory bail, we also look at factors like whether an eye witness is there whose life could be endangered or could be influenced: Justice Sreedharan.

In Madhya Pradesh, when it comes to grant of bail, it is really bad right now in that 80 to 90 percent cases bail is rejected by lower courts and is pushed to the High Court: Justice Sreedharan.

When it comes to major offences the only aspect many times considered by lower courts for grant of bail is the punishment for the crime involved. They do not even look into the fact that there is no evidence at all: Justice Sreedharan.

In American jurisprudence, community service is imposed as condition for bail. Can this be imbibed in India? Vidhi Thaker to Justice Sreedharan

Justice Sreedharan in this context discusses the triple talaq.

There would have been no problem if we had derecognised it. But here the problem is we have criminalised it. And we have large number of people who are illiterate: Justice Sreedharan.

It is all good for us to say ignorance of law is no excuse but ground reality is different. There was a case of statutory rape where girl below eloped got married. Hsband was tried for rape. The girl is crying asking to leave the man: Justice Sreedharan

Now we have these cases of anti national, sedition which is amorphous. Many times bail is denied because judges think ,'log kya kehenge'. So we have instance when for some speech, a person is charged for sedition, says Justice Sreedharan saying community service can be considered

We have to empower the District Judiciary and give them a free hand and in this regard, we have to take a leaf out of Delhi High Court: Justice Sreedharan.

Law officers/ prosecutors must keep in mind that they do not reflect the might of the State but reflect rights of people also: Siddharth Luthra recounting personal experiences from his tenure as Additional Solicitor General.

I really can't understand this recent trend of criminalising everything: Siddharth Luthra.

Webinar comes to a close.

“Log kya kehenge; The moment sedition case is slapped against a person, a judge does not want to give him bail:” Justice Atul Sreedharan

#sedition

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