Recently, in an oral order, the Patna HC laid down some conditions for granting bail to an accused which includes payment to the PM CARES fund. In the words of the Court: “The bail bond of the petitioner shall be accepted by the learned Court below on showing receipt of deposit of Rs.15,000/- (Rupees Fifteen Thousand) in the PM Cares fund.”
This strange condition for granting bail is not an isolated phenomenon. In the last few weeks, various law courts around the country have provided similar conditions for granting bail to the accused.
The Jharkhand High Court, in the order of Avinash Kumar Srivastava vs. The State of Jharkhand [(30.04.2020 – JHRHC) : MANU/JH/0172/2020], had laid down three conditions for granting bail, one of which reads: “The petitioner shall download the ‘Aarogya Setu App’ immediately after being released from custody and shall abide by the directions of the Central Government as well as State Government issued in connection with containment of Covid-19 pandemic.”
Again, the Madhya Pradesh High Court has also passed a number of bail orders of similar nature recently. Until 19th May, 2020, as per available case information on the Court’s website, 22 such orders have been passed. In some of these orders, the Court has directed the applicant/petitioner to register themselves with the concerned District Magistrate as a “Covid-19 Warrior” “by entering his name in a Register named as COVID-19 WARRIOR REGISTER.” (For a detailed account, it is suggested to go through this reportage.)
In this piece, I argue that how such conditions are incongruous with the trite conditions for granting bail as laid down in the statutes and case laws and how imposition of them can be against the basic structure of our constitution.
What is the law?
Section 437 of the Code of Criminal Procedure talks about granting bail to a person accused of a non-bailable offence. Sub-section 3 of this section provides for the conditions based on which a court can allow a person to be enlarged on bail.
While laying down such conditions, the Court has a duty to ensure that they do not become of such a nature to defeat the object and purpose of the statute. It also cannot impose burden on the accused unreasonably.
There are certain conditions that are specifically proscribed from imposing for granting bail. In his latest blogpost on bail jurisprudence, advocate Bharat Chugh has shortlisted some of them –
• Direction to deposit certain amount in the X fund and download X app on phone as precondition of bail.
• Arrest made for writing an offensive post on social media against a particular community- bail granted on the condition that accused should distribute five copies of the religion’s primary religious document to different libraries.
• On a charge of sedition, the bail order detailed upon “nationalism”, the plight of soldiers on the border and other jargon for 30 plus pages.
• Sexual harassment matter: the judge in the bail order makes unwarranted remarks upon the victim and her character.
• Condition of planting certain number of trees.
• Condition of apologizing for a tweet.
• Condition of depositing money with the court, especially in economic offences.
• Condition of not saying “anti-national” things.
• Condition of marrying the complainant, in a domestic law case.
The bail orders that are subject of my discussion have a number of drawbacks. The most prominent one seems that they go against the very first point of the list above. But that is not the only one.
The separation of power
In a modern democracy, the State is very powerful and if not put under restraint, it can dangerously undermine the importance of the life and liberty of its citizens. For this, ‘Separation of Power’ is a concept that is an absolute necessity, for it puts the required checks and balances between the organs of the State to prevent it from becoming omnipotent.
Separation of power is something that did not find a specific mention in our Constitution, unlike that of the United States. But it is very much ingrained in the constitutional system of our country. It is one of the few elements that form the ‘Basic Structure’ of our Constitution as laid down in the famous judgment of Keshavananda Bharati, despite not having a specific mention in the Constitution.
I called the impugned bail orders “strange” as they strike at the root of the concept of ‘Separation of Power’, thereby violating the basic structure of our constitution. It is important to know how they do that.
The concerned orders prima facie contradict article 50 of our Constitution. Article 50 specifically puts an obligation on the State to separate the judiciary from the executive. Both the PM CARES fund and the Aarogya setu app are handiworks of the executive. And it is superfluous to say that the bail orders are judicial decisions. By directing the parties in the concerned cases to do something that directly facilitates the executive, the Judiciary, as a part of the State, has failed to fulfil the obligation that the Constitution imposes upon it.
Though separation of power is a part of the basic structure of our Constitution, the executive and the Legislature are intricately intertwined with each other. It was provided in Ram Jawaya Kapur vs State of Punjab that the executive is derived from the legislature and the legitimacy of the former emanates from the latter. The legislature is formed with members enjoying popular support (either directly or indirectly) and the executive represents that portion of the legislature which enjoys the confidence of the majority. This effectively makes the combination of these two wings majoritarianistic.
Judiciary: the counter-majoritarian organ
Various literary works, including ‘An Enemy of The People’ by Ibsen, tell us about the ill-effects of majoritarianism. It is important to check the rise of majoritarianism, otherwise it can prove to be the biggest menace for a constitutional democracy. In our constitutional system, the judiciary does this job as the “counter-majoritarian” organ of the State. Given this status, it is expected from the judiciary to not toe the line of the legislature-executive combination. But through these bail orders, the judiciary became an active collaborator in the initiatives of the executive, creating a serious doubt in the minds of the conscious citizens on its constitutional commitment.
This has assumed more significance in the wake of the discoveries of imminent risk of privacy spillage through the Aarogya setu app and the question mark on the accountability of the PM CARES fund. The Judiciary cannot force the litigants to comply with some executive initiatives that are dubious in nature.
The framers of our Constitution aimed for an independent and robust judiciary. Equipped with the powers of judicial review and suo motu cognizance in public interest, the Judiciary was intended to come out as a strong check on the executive and the legislature. But if the Courts continue to give judicial pronouncements in the manner they did in the abovementioned bail orders, it will not only weaken the independence and robustness of the Judiciary but also disrespect the separation of power which is a part of the basic structure of our Constitution. Putting the doctrine of ‘Separation of Power’ in peril does two things at a time – a. it violates our constitutional scheme, and b. it debases the eminence of the judiciary as an independent and counter-majoritarian institution.
It is high time the Judiciary introspected on these issues.