Challenges To India's Bail System: Justice Akil Kureshi and Senior Advocate Rebecca John Discuss

While discussing these challenges, Justice Kureshi also spoke about the ways to improve. “We need better and more judges, good legal aid support, prosecutors in sufficient number,” he stated.

NLU Delhi Project 39A and Daksh organized the panel discussion, and it addressed India’s bail system, its faultlines, and the ways forward.

Present at the panel was also Senior Advocate Rebecca John and executive director of Project 39A, Prof Anup Surendranath, who moderated the discussion.

In the beginning, when asked about increasing criminalisation, arrests, and powers of arrests, Justice Kureshi said that laws like the Prevention of Money Laundering Act (PMLA) and the Maharashtra Control of Organised Crime Act (MCOCA), with legislative impediments, make it more stringent and difficult to grant bail and make it easier to arrest and have a chilling effect.

Moving forward, Justice Kureshi also highlighted the Supreme Court's landmark decision in Hussainara Khatoon v. Home Secretary, State of Bihar (1979 AIR 1369). Imperatively, this judgment gave a wider interpretation of Article 21 of the Indian Constitution and held that speedy trial is the fundamental right of every citizen. It further emphasized speedy trial and free legal aid to administer justice and equality among the citizens effectively.

With respect to financial problems faced by undertrials, Justice Kureshi stated: “There are financial impediments. I do not think that a person’s financial status has anything to do with his ability to come to trial.”

Further, while discussing the issue regarding bail bonds, he said, “If an undertrial prisoner has to jump, they will jump. A 10-20 thousand amount, which will keep him inside, is not a large enough sum for him to come back and face a murder trial. So, this correlation is wrong.”

Taking about judicial discretion in granting bail and laws that have legislative impediments in granting bail, he said:

“Should we doubt the judiciary’s capacity to decide disputes? These laws make it harder to grant bail. Like SC ST Atrocities Act, there is no anticipatory bail. Not questioning Parliament’s power to do that. But it creates distrust of the judiciary’s ability handle such cases, the wisdom behind such laws.”

Notedly, Justice Kureshi also spoke about the judgments in GN Saibaba (State of Maharashtra v. Mahesh Kariman Tirki And Ors) and Zahoor Ahmad Shah Watali (NIA v. Zahoor Ahmad Shah Watali)

It may be recalled that in GN Saibaba, an extraordinary special sitting was held by the Supreme Court on Saturday, wherein it suspended the Bombay High Court’s order discharging former Delhi University professor G N Saibaba and five others in a UAPA case.

Also,in Watali’s decision, the Supreme Court narrowed the scope for grant of bail in UAPA cases.

While Justice Kureshi described Watali’s judgment as ‘unfortunate’ regarding the GN Saibaba case, he stated: “What was the need for a Saturday hearing to set aside an acquittal, which in itself is rare? Even if he were released, he could have been arrested.”

Lack Of Consistency In Courts Sends A Very Problematic Signal: Rebecca John

Answering the question pertaining to the increasing criminalisation, arrests, and powers of arrests, Senior Advocate Rebecca John recalled how earlier there would be 12 bail cases (in Delhi High Court) only and then regular matters. So everything would be heard. Now, there are 80-90 matters, and they do not reach.

She agreed that a lot of people are being sent to jail. John further emphasised that a lot of cases are there where bail is granted, but prisoners continue to be incarcerated.

Speaking about onerous conditions imposed by Courts while granting bail, she said that there are conditions like solvency bonds, dropping a Google pin, and sharing location, which is an invasion of privacy.

Thereafter, John also flagged that the lack of consistency in courts is an issue. Elaborating the same, she said that the Supreme Court has of late attempted to correct the errors of the past, but there is no consistency, and it sends very problematic signals.