Bail or jail ?

 "If it is bail vs jail, it is always bail" is a populist nostrum. It all depends on the specifics of a case and the law which governs the particular case. Unlike the general criminal law, grant of bail in cases under UAPA (Unlawful Activities Prevention Act) is exceptional and rare. Similarly, in cases involving sedition and incitement to violence, bail ought to be the last choice.

In Disha Ravi's case, Judge Dharmender Rana, has reasoned that dissemination of information is encouraged by Indian ethos and has quoted the Rig Veda which says, "आ नो भदाः कतवो यनतु िवशवतोऽदबधासो अपरीतास उिददः। (Let noble thoughts come to me from all directions).” The Hon.Judge has concluded from this that we must welcome divergent thoughts. This is a wrong conclusion because the Veda refers only to noble thoughts and not any divergent thought.

Supreme Court and Chidambaram's bail

Reading the 36 page judgement of the Supreme Court reversing the Delhi High Court decision and granting bail to P.Chidambaram, one gets the impression that one's faith in the judicial process is neither sustained nor restored.

The Supreme Court substantially agrees with the High Court, but cleverly and perhaps cunningly arrives at the contrary decision. The apex court accepts that economic offences are a class apart. It is therefore the case that the tripod test (flight risk, tampering with documentary evidence and influencing the witnesses) is not the only consideration to decide on bail applications. Yet it is also held that bail is the rule and jail the exception.

The sealed cover may contain the reasons why bail is not called for. But then, bail is the rule. The accused is 74 years old. He had to consume antibiotics in jail! Is PC the only pre-trial prisoner satisfying these conditions? The court could have used this opportunity to enquire how many such prisoners were there in Tihar jail itself. Does the court care for equality before the law?

The court accepts that the gravity of alleged offence is a relevant consideration. There is a rider there also. The maximum period of prison sentence for his alleged offence is ONLY 7 years and so bail is the norm.

Tushar Mehta had made it clear to the court that the charge sheet is not yet exhaustive and that further investigation is necessary in the interest of justice. Witnesses had confirmed that they had come under pressure from the accused and his family. All these matter little to the court because the accused is 74 years old and has lost weight while in prison. If these are accepted as exculpatory reasons for lenience in grant of bail, the prisons will become almost empty.