Presumption of innocence principle is paramount to the Indian legal system. All the three pillars i.e., legislature, judiciary and executive have to follow this principle which has its roots in the Constitution.
Yet there is no visit to pre-trial rights of accused in consonance with this legal principle. Article 19, 20,21 with “reasonableness” character acts as a balancing tool for rights of accused and the victim. By imposing “reasonable” conditions from regular and common to harsh and stringent, formulating such on a case-to-case basis, also by preventive detentions during processions and festivals.
The prosecution must also carry the burden of demonstrating that the public interest outweighs the presumption of innocence and the right to civil freedoms. After all, if an accused cooperated during the investigation and routinely attended trial, how can the Court infer that he/she will not continue to do so, and what evidence can they present to counter this negative presumption?
Following that, if the accused is found not guilty, I feel the law should offer compensation for unjust incarceration, deprivation of liberty, reputational consequences, and related costs. This is especially important in circumstances of major offences, because even acquittal may not be enough to reverse the public stigma and shame produced by the severity of the indictment. The Supreme Court in Shakuntala Shukla v. State of Uttar Pradesh reiterated that once an accused is convicted by the trial court, the principle of presumption of innocence will not be applicable during the hearing of appeal and bail. This judgment is heavily criticized and praised by a group of scholars. Criticism is for its assumption of guilt. Question comes: can we draw an analogy where in a civil case appeal is part of a single civil suit, so, the criminal trial should be. If it’s affirmative, the presumption of innocence sustains throughout appellate courts and particularly bail. However, another set of scholars argue that district court is the baseline for any criminal trial, the evidence cannot be revisited at fullest extent and new evidence cannot be brought in the appellate courts and therefore, the continuance of presumption of innocence will only evade the purpose of the criminal jurisprudence itself.
The case of Pappu Yadav v. C.B.I., where he was a former Member of Parliament being charged with conspiracy to murder his political rival in broad daylight. The Courts, both at trial and appellate levels, rejected ten bail applications of the accused even though he had been in prison for over seven years and the trial was far from completion. Placing a premium on the interest of society, despite the extended detention and delay in proceedings, the Supreme Court imposed ‘reasonable restrictions’ on the right to liberty observing that it would “be wholly inappropriate to grant bail when not only the investigation is over but even the trial is partly over, and the allegations against the appellant are serious”. Furthermore, it practically side-stepped the presumption of innocence by rejecting the contention that extended incarceration impeded the defence of the accused, noting that “if this argument is to be accepted, then logically in every case bail has to be granted”.
When law is clear stating no conditions inconsistent to presumption of innocence can be imposed, the process of deciding bail application is itself in violation of such. The person’s conduct in society, character, behaviour, means, position, and standing are considered in granting of bail, but such attacks the resumption. Thus, I feel this presumption is not absolute, exceptions are bound to happen in such forms especially when dealing with alleged offences like murder. It is the judge’s initial estimate of the accused’s guilt at that point in the procedure. Such an inquiry is tainted with what I refer to as the likely guilt bias. Due to this bias, courts frequently examine bail factors as though the accused were guilty, as seen by the judicial anxiety to grant bail.
Since granting bail is discretionary, rise of bench-hunting was encountered and subsequently discouraged. Many HCs inquires into standing of accused whereas Many HCs do not, the Supreme Court not decided to give finality, thus, leaving societal interest in drowning boat. Recently in 2021, the Raj HC in Hemraj v. State of Raj granted bail to a murder accused after hearing his counsel’s arguments contending that no one can be arrested simply on the basis of assumption, presumption and perception. Another important criticism is the amount of consideration, the critiques say that only the rich can afford luxuries like bail and parole. This being the trend disrupts the wheel of justice and public faith is compromised. Be it in terms of speedy justice, for example, granting of bail by the Bombay High Court to Salman Khan in hit and run case barely three hours after he was sentenced to five years of rigorous imprisonment. For every person from access to fulfillment of bail conditions is subjective, so judges realized it and many times imposed heavy bail bonds.
Our Indian Legal System has a very good sense of law but lacks practicality. Taking away of passports, monetary sanctions, undertaking not to tamper evidence or threaten witnesses, sureties, etc are few ways. However, the accused person’s are either seen breaking the conditions or being stigmatized by harsh conditions in the society. For example, Vijay Palande fleeing away even though in the vicinity of police officials and on bail, continued with next criminal activities.
We have special laws in force to deal with special cases, however, should it be at the cost of the golden presumption principle, is always a matter for debate. Few provisions of UAPA, MCOCA, S. 304B i.e., dowry death and the twin test u/s.48 of PMLA are heavily criticized because of its reverse burden in bail cases. Since, murder is scheduled offence ‘A’, the twin test applies and it becomes difficult to establish a good case.,the question still persists whether stringent screening by judge and imposition of restrictions are reasonable and proportional. Thus, revisit is required to balance the public interest and rights of the accused.
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